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Sandvik Intellectual Property Ab v. Kennametal

September 25, 2012

SANDVIK INTELLECTUAL PROPERTY AB
v.
KENNAMETAL, INC.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM ORDER OF COURT

Presently before the Court for disposition is the MOTION TO COMPEL DISCOVERY (Document No. 269-1) AND MOTION FOR SANCTIONS (Document No. 269-2) filed by Kennametal Inc. ("Kennametal"), the BRIEF IN OPPOSITION (Document No. 276) filed by Sandvik Intellectual Property AB ("SIPAB"), the REPLY BRIEF and SUPPLEMENT TO REPLY filed by Kennametal (Document Nos. 278 and 279), and the RESPONSE TO SUPPLEMENT filed by SIPAB (Document No. 281). For the reasons that follow, the Motions will be granted.

Background

After the filing of the Report and Recommendation of the Special Master on February 16, 2012, the parties agreed to postpone further discovery except on the issues related to Kennametal's counterclaims and defenses against SIPAB for inequitable conduct and unclean hands relating to, inter alia, SIPAB's alleged pattern of including false material information regarding the manufacturing process identified in the '625, '782, and '687 patents and attempting to use those patents to improperly exclude Kennametal from practicing this technology. This limited discovery period ended June 26, 2012.

On July 1, 2011, following the completion of the deposition of Bjorn Ljungberg, Kennametal served Interrogatory 21 on SIPAB, which Interrogatory states as follows:

Identify all persons who knew at any time prior to Bjorn Ljungberg's deposition in this matter on June 22, 2011 that Bjorn Ljungberg did not perform the process set forth in Example 1 of the '625 Patent before the '625 Patent issued, and include in your answer when each person first became aware of this information, how they became aware of it, and the identity of all documents concerning the knowledge of any such persons regarding this topic.

SIPAB was required to respond to the Interrogatory on or before August 2, 2011. However, one day before SIPAB's response was due, it requested a 14-day extension to respond, to which Kennametal consented on the express condition that "SIPAB is not planning to simply assert objections." Two weeks later, SIPAB asked for a second 14-day extension, to which Kennametal consented, again with the condition that "so long as [SIPAB] is not planning to simply object to the discovery requests.

On August 29, 2011, SIPAB served its Response to Interrogatory 21 and, contrary to the parties' agreement, SIPAB provided nothing but objections. Thereafter, the parties conferred by phone during which Kennametal informed SIPAB that it considered SIPAB's response deficient. Since that time, SIPAB's position has been best described as a "moving target" and although it has twice supplemented its response to Interrogatory 21, the responses continue to be less than complete.

For example, on or about September 12, 2011, SIPAB supplemented its original response, but provided a response limited only to pre-complaint information as opposed to information up to the deposition of Mr. Ljungberg, as requested. After Kennametal objected at least twice to the continuing deficiencies in the Supplemental Answer to Interrogatory 21, on November 4, 2011, SIPAB asserted, for the first time, a blanket privilege claim for all post-complaint communication, as follows:

[SIPAB] considers any additional information potentially responsive to the Interrogatory as propounded to call for privileged communications and information. Therefore, SIPAB believes that its answer is as complete as it can be without waiving privilege.

Kennametal responded that despite SIPAB's blanket privilege claim, it must nonetheless identify all non-privileged information about those communications, including when the communications took place, the type of communication, where the communication took place, and the identification of the individuals involved. SIPAB responded that it would not provide further information about any privileged communications and also confirmed that there had not been post-complaint communications between Ljungberg and non-privileged persons about the subject matter.

From November 2011 through January 2012, the parties continued to discuss SIPAB's deficient response to Interrogatory 21. SIPAB took the position that it did not need to further respond to the Interrogatory because an uncleans hands claim could not be based on post-complaint conduct and requested that Kennametal provide authority for its position, which authority Kennametal provided to SIPAB on November 21, 2011.

The parties again conferred on January 25, 2012, and SIPAB again stated that although it had already provided all non-privileged information in its first supplemental answer to Interrogatory 21, it did agree to evaluate the issue one more time. On March 1, 2012, SIPAB indicated that it would provide a second supplemental answer to Interrogatory 21.

Approximately one month before the close of discovery, on May 18, 2012, SIPAB provided its Second Supplemental Response to Interrogatory 21, and for the first time disclosed non-privileged information about four post-complaint communications, and significantly revealed that, contrary to SIPAB's multiple representations, two of the four communications ...


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