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Kimberly-Clark Worldwide, Inc v. First Quality Baby Products

October 6, 2011

KIMBERLY-CLARK WORLDWIDE, INC., PLAINTIFF
v.
FIRST QUALITY BABY PRODUCTS, LLC, FIRST QUALITY PRODUCTS, INC., FIRST QUALITY RETAIL SERVICES, LLC, AND FIRST QUALITY HYGIENIC, INC.,
DEFENDANTS FIRST QUALITY BABY PRODUCTS, LLC, FIRST QUALITY PRODUCTS, INC., FIRST QUALITY RETAIL SERVICES, LLC, AND FIRST QUALITY HYGIENIC, INC., COUNTERCLAIM PLAINTIFFS,
v.
KIMBERLY-CLARK CORPORATION, KIMBERLY-CLARK WORLDWIDE, INC., AND KIMBERLEY-CLARK GLOBAL SALES, LLC, COUNTERCLAIM DEFENDANTS



The opinion of the court was delivered by: (Mag. Judge Carlson)

(Judge Caldwell)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This case is a complex commercial patent and antitrust lawsuit between parties that manufacture, produce and market a wide array of adult incontinence products and baby diapers. The district court has referred discovery disputes to the undersigned for resolution.

Now pending before the Court is the motion of Kimberly-Clark Worldwide, Inc. ("K-C") to compel Defendants ("First Quality or "Defendants") to respond to K-C's Interrogatory Nos. 15 and 16, relating to identification of the raw materials used to manufacture the adult incontinence products and baby diapers that K-C believes infringe the Kellenberger or Melius patents in suit.*fn1 (Doc. 457.) K-C argues that it needs the information sought in these interrogatories to determine which of First Quality's products infringe, and complains that the lack of the information impairs K-C's ability to develop its proofs regarding infringement. Additionally, K-C contends that it has narrowed the list of First Quality products for which information is sought, in an effort to minimize the burden on First Quality in responding to the discovery. Finally, K-C asserts that the information sought in the narrowed interrogatories is not duplicative of technical documents that First Quality has already produced.

In opposing the motion, First Quality characterizes the discovery K-C seeks as "a burdensome, unnecessary make-work project" that is both duplicative and unnecessary since First Quality has already produced everything K-C needs to undertake its infringement analysis. (Doc. 478, at 1.) First Quality also maintains that K-C's motion is effectively rebutted by the K-C's revised infringement contentions, which were served immediately prior to the original due date for First Quality's brief in opposition to the motion to compel, as K-C appears to have used technical documents that First Quality produced approximately one year ago and accused 272 product specifications of infringing the Kellenberger and Melius patents, whereas K-C had previously only accused 13 products of infringing the patents.

Lastly, First Quality resists the discovery sought on the grounds that it seeks, in part, information regarding 319 specifications that relate to products that K-C has not accused of infringing. First Quality notes that the Court has previously emphasized that K-C needed to identify products as infringing before the Court would permit discovery into financial and technical information. (Doc. 461, at 2.) For all of these reasons, First Quality urges the Court to deny K-C's motion to compel.

Mindful of the need to balance K-C's need for relevant information about the material used in potentially infringing products against First Quality's interest in not being subject to burdensome or duplicative discovery, we will grant the motion. Upon careful review of the briefs and exhibits, we find that the balance of these competing interests tilts in K-C's favor. As explained briefly below, it appears that the dispute between the parties essentially boils down to a disagreement over whether First Quality has already provided K-C with the information it seeks in Interrogatory Nos. 15 and 16. First Quality insists that everything K-C needs to know can be found in other discovery responses; K-C maintains that these other discovery responses do not provide adequate answers to the questions posed in the interrogatories. Upon review, we agree that K-C reasonably requires additional information that First Quality -- and only First Quality -- can provide in order to facilitate K-C's infringement analysis and develop its proofs in this action. Accordingly, we will direct that First Quality provide full and complete responses to Interrogatory Nos. 15 and 16 with respect to the narrowed list of products.

III. DISCUSSION

A. The Interrogatories

Interrogatory No. 15 provides as follows:

For each baby diaper and wearable incontinence product of First Quality, including each product identified by First Quality pursuant to Court-ordered discovery (including but not limited to the Court's August 17, 2010 Order) (collectively, "Absorbent Products"), please identify on a product by product basis (as identified by IP Number, FQRKIP Number and/or 5-Byte Number), each superabsorbent polymer ("SAP") product employed in each product since March 12, 2003, including: identification of the manufacturer of each SAP product (for example, BASF), the manufacturer's name for the SAP product (for example, "HySorb"), First Quality's name for the SAP product and/or the type of SAP product (for example, "SAP4"), and the dates First Quality used each SAP product in each of the Absorbent Products (with an identification of the amount of SAP (by weight) used in each such Absorbent Product (including any changes to the weight amount of SAP used in each Absorbent Product). Additionally, identify the person(s) most knowledgeable regarding the information sought in this interrogatory. (Doc. 459, Ex. B.)

Interrogatory No. 16 provides as follows:

For each baby diaper and wearable incontinence product of First Quality, including each product identified by First Quality pursuant to Court-ordered discovery (including but not limited to the Court's August 17, 2010 Order) (collectively, "Absorbent Products"), please identify on a product by product basis (as identified by IP Number, FQRKIP Number and/or 5-Byte Number), each pulp (or fluff) product employed in each product since March 12, 2003, including: identification of the manufacturer of each pulp product, the manufacturer's name for the pulp product, First Quality's name for the pulp product, and the dates First Quality used each SAP product in each of the Absorbent Products, with an identification of the amount of pulp (by weight) used in each of the Absorbent Products (including any ...


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