Core Optical Technologies, LLC v. Infinera Corp.

MEMORANDUM in Support of MOTION to Compel Answers to Interrogatories of Plaintiff Core Optical Technologies, LLC

C.D. Cal.January 20, 2018

MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Barry W. Lee (State Bar No. 88,685) bwlee@manatt.com Lawrence R. LaPorte (State Bar No. 130,003) llaporte@manatt.com MANATT, PHELPS & PHILLIPS, LLP 11355 West Olympic Boulevard Los Angeles, CA 90064 Telephone: (310) 312-4000 Facsimile: (310) 312-4224 Yasser M. El-Gamal (State Bar No. 189,047) yelgamal@manatt.com Charles A. Kertell (State Bar No. 181,214) ckertell@manatt.com MANATT, PHELPS & PHILLIPS, LLP 695 Town Center Drive, 14th Floor Costa Mesa, CA 92626 Telephone: (714) 371-2500 Facsimile: (714) 371-2550 Attorneys for Plaintiff and Counterclaim-Defendant CORE OPTICAL TECHNOLOGIES, LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CORE OPTICAL TECHNOLOGIES, LLC, Plaintiff and Counterclaim-Defendant, v. INFINERA CORP., Defendant and Counterclaimant. Case No.: 8:17-cv-00548 AG (JPRx) CORE OPTICAL TECHNOLOGIES, LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO ITS FIRST SET OF INTERROGATORIES (NOS. 1-8) Date: February 22, 2018 Time: 10:00 a.m. Location: Courtroom 690 (Roybal) Fact Discovery Cut-Off: Dkt. 20 Pretrial Conference Date: March 4, 2019 Trial Date: March 19, 2019 Hon. Jean P. Rosenbluth Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 1 of 86 Page ID #:161 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Contents Page i Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 I. Introduction ......................................................................................................... 1 A. Factual Background ...................................................................................... 1 B. Brief Summary Of Core Optical's Interrogatories ........................................ 3 1. Interrogatory No. 1 ................................................................................... 3 2. Interrogatory No. 2 ................................................................................... 3 3. Interrogatory No. 3 .................................................................................. 4 4. Interrogatory Nos. 4 & 5 .......................................................................... 5 5. Interrogatory No. 6 ................................................................................... 6 6. Interrogatory No. 7 ................................................................................... 6 7. Interrogatory No. 8 ................................................................................... 7 II. Interrogatory No. 1 ............................................................................................. 8 A. Text Of Core Optical Interrogatory No. 1 .................................................... 8 B. Defendant's Response To Interrogatory No. 1 .............................................. 8 C. Defendant's Objections Should Be Stricken ................................................. 9 1. Defendant's Use Of Generalized Objections Is Improper ........................ 9 2. Defendant's Public Source Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 10 3. Defendant's Privilege/Work Product Objection Is Factually Unsupported And Appears Nonsensical .................................................. 11 4. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 12 5. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 13 6. Defendant's "Ever" Manufactured, Used, Offered for Sale, or Sold Objection Is Vague And Lacks Substantive Merit ................................... 13 7. Defendant's "Burden Shifting" Objection Is Nonsensical ........................ 15 8. Defendant's "Each Model, Version, and Type" Objection Is Vague And Lacks Substantive Merit ................................................................... 15 9. Defendant's "Each Dual Polarization Product" Objection Is Vague And Lacks Substantive Merit ................................................................... 16 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 2 of 86 Page ID #:162 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 1 ................................................................. 17 III. Interrogatory No. 2 ........................................................................................... 18 A. Text Of Core Optical Interrogatory No. 2 .................................................... 18 B. Defendant's Response To Interrogatory No. 2 .............................................. 19 C. Defendant's Objections Should Be Stricken ................................................ 21 1. Defendant's Use Of Generalized Objections Is Improper ........................ 21 2. Defendant's Prematurity Objection #1 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage .......................... 21 3. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .......................... 23 4. Defendant's Prematurity Objection #3 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .......................... 24 5. Defendant Has Never Supported Its Privilege Objection ........................ 24 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 2 Without Reference To Rule 33(d) .......... 25 IV. Interrogatory No. 3 .......................................................................................... 27 A. Text Of Core Optical Interrogatory No. 3 .................................................... 27 B. Defendant's Response To Interrogatory No. 3 .............................................. 28 C. Defendant's Objections Should Be Stricken ................................................. 29 1. Defendant's Use Of Generalized Objections Is Improper ........................ 29 2. Defendant's "Interrogatory No. 1" Objection Lacks Substantive Merit And Is Misplaced ............................................................................ 30 3. Defendant's Privilege/Work Product Objection Is Unsupported, And Appears Nonsensical ................................................................................ 30 4. Defendant's Prematurity Objection Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 31 5. Defendant's "Granularity" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 32 6. Defendant's Vague/Ambiguous Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 33 7. Defendant's Vague/Ambiguous Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 34 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 3 of 86 Page ID #:163 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 8. Defendant's Vague/Ambiguous Objection #3 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 34 9. Defendant's Vague/Ambiguous Objection #4 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 34 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 3 Without Reference To Rule 33(d) .......... 35 V. Interrogatory No. 4 ............................................................................................ 37 A. Text Of Core Optical Interrogatory No. 4 .................................................... 37 B. Defendant's Response To Interrogatory No. 4 .............................................. 37 C. Defendant's Objections Should Be Stricken ................................................. 37 1. Defendant's Use Of Generalized Objections Is Improper ........................ 38 2. Defendant's Prematurity Objection #1 Is Vague, Factually Unsupported, And Nonsensical ................................................................ 39 3. Defendant's Prematurity Objection #2 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage .......................... 40 4. Defendant's "Each Sale" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 41 5. Defendant's "United States" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 42 6. Defendant's Duplicative/Omnibus Objection #1 Is Vague, Factually Inaccurate, And Lacks Substantive Merit ................................ 43 7. Defendant's Vague/Ambiguous Objection Appears Disingenuous ......... 45 8. Defendant's Duplicative/Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................ 46 9. Defendant's "Each Dual Polarization Product" Objection Is Vague, Factually Unsupported, And Lacks Merit ................................... 47 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 4 Without Reference To Rule 33(d) .......... 48 VI. Interrogatory No. 5 ........................................................................................... 50 A. Text Of Core Optical Interrogatory No. 5 .................................................... 50 B. Defendant's Response To Interrogatory No. 5 .............................................. 50 C. Defendant's Objections Should Be Stricken ................................................. 51 1. Defendant's Use Of Generalized Objections Is Improper ........................ 51 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 4 of 86 Page ID #:164 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 2. Defendant's Prematurity Objection #1 Is Vague, Factually Unsupported, And Nonsensical ................................................................ 52 3. Defendant's Prematurity Objection #2 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage .......................... 53 4. Defendant's "Each Sale" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 53 5. Defendant's "United States" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 54 6. Defendant's Duplicative/Omnibus Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 54 7. Defendant's Vague/Ambiguous Objection Appears Disingenuous ......... 55 8. Defendant's Duplicative/Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 56 9. Defendant's "Each Dual Polarization Product" Objection Is Vague, Factually Unsupported, And Lacks Merit ................................................ 58 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 5 Without Reference To Rule 33(d) .......... 58 VII. Interrogatory No. 6 .......................................................................................... 60 A. Text Of Core Optical Interrogatory No. 6 .................................................... 60 B. Defendant's Response To Interrogatory No. 6 .............................................. 60 C. Defendant's Objections Should Be Stricken ................................................. 61 1. Defendant's Use Of Generalized Objections Is Improper ........................ 61 2. Defendant's Vague/Ambiguous Objection Illustrates A Failure To Participate In Discovery In Good Faith ................................................... 62 3. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 63 4. Defendant's Prematurity Objection #2 Constitutes Improper And Inaccurate Attorney Argument ................................................................. 64 5. Defendant Has Never Supported Its Privilege Objection ........................ 64 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 6 ................................................................. 65 VIII. Interrogatory No. 7 ........................................................................................ 66 A. Text Of Core Optical Interrogatory No. 7 .................................................... 66 B. Defendant's Response To Interrogatory No. 7 .............................................. 66 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 5 of 86 Page ID #:165 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 C. Defendant's Objections Should Be Stricken ................................................. 68 1. Defendant's Use Of Generalized Objections Is Improper ........................ 68 2. Defendant Has Never Supported Its Privilege Objection ........................ 68 3. Defendant's Omnibus Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 69 4. Defendant's Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 70 5. Defendant's Omnibus Objection #3 Again Illustrates A Failure To Participate In Discovery In Good Faith .............................................. 71 6. Defendant's Omnibus Objection #4 Is Vague, Factually Unsupported, And Lacks Substantive Merit ............................................ 71 7. Defendant's Prematurity Objection Is Vague, Factually Unsupported, And Nonsensical ................................................................ 72 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 7 ................................................................. 72 IX. Interrogatory No. 8 ........................................................................................... 74 A. Text Of Core Optical Interrogatory No. 8 .................................................... 74 B. Defendant's Response To Interrogatory No. 8 .............................................. 74 C. Defendant's Objections Should Be Stricken ................................................ 75 1. Defendant's Use Of Generalized Objections Is Improper ........................ 75 2. Defendant's "Burden Shifting" Objection Is Nonsensical ........................ 76 3. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 76 4. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage .............................................. 77 5. Defendant Has Never Supported Its Privilege Objection ........................ 79 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 8 ................................................................. 79 X. Sanctions ............................................................................................................ 80 XI. Conclusion ......................................................................................................... 80 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 6 of 86 Page ID #:166 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 I. Introduction Plaintiff Core Optical Technologies ("Core Optical") hereby seeks an Order compelling defendant Infinera Corp. ("Defendant") to immediately provide full and complete, verified responses to Core Optical's First Set of Interrogatories (Nos. 1-8) without objection and without reference to Federal Rule of Civil Procedure 33(d).1 Core Optical also respectfully submits that Defendant's meritless objections, evasive "responses," and failure to participate in a Local Rule 37-1 pre-filing conference warrant the imposition of evidentiary and monetary sanctions. See Fed.R.Civ.P. 37. A. Factual Background Core Optical filed its Complaint against Defendant for infringement of U.S. Patent No. 6,782,211 ("the '211 patent") on March 24, 2017. The pioneering technology set forth in the '211 patent greatly increases data transmission rates and bandwidth efficiency in fiber optic networks. (Dkt. 1). After lengthy negotiations concerning mediation, as well as Defendant's filing of an Amended Answer/Counterclaims, Core Optical served its narrowly-tailored interrogatories on November 6, 2017 (i.e., soon after discovery opened). (LaPorte Decl., Ex. 1). On December 6, 2017, Defendant served scores of substantively deficient "boilerplate" objections and incomplete/evasive responses, many of which improperly invoked Rule 33(d) without identifying (let alone producing) a single document. (LaPorte Decl., Ex. 2). Defendant also omitted the required verification. Core Optical promptly sent Defendant a Local Rule 37-1 letter on December 19, 2017: (1) detailing the deficiencies in Defendant's objections/responses; and (2) requesting a pre-filing conference. (LaPorte Decl., Ex. 3). Defendant failed to respond (let alone participate in the required conference) within the 10-day period mandated by the Local Rules (i.e., by December 29, 2017). (LaPorte Decl., ¶5). 1 This includes a request that the Court strike all of Defendant's objections – with the exception of certain objections based on attorney-client privilege and/or work product (provided Defendant immediately provides a log detailing any withheld information in conformance with Federal Rule of Civil Procedure 26(b)(5)). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 7 of 86 Page ID #:167 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 In an attempt to avoid the present motion, and given the holidays, Core Optical telephoned counsel for Defendant, on Tuesday January 2, 2018, to again request that Defendant participate in the required Local Rule 37-1 conference (and left a voice mail message to that effect). (LaPorte Decl., ¶5). Having received no response to this message, Core Optical also sent correspondence to counsel for Defendant on that same date: (1) specifically notifying them that Defendant was in violation of Local Rule 37-1; and (2) requesting that the overdue conference be completed by Thursday, January 4, 2018. (LaPorte Decl. Ex. 4). Counsel for Defendant again ignored this follow-up request, and instead sent Core Optical an evasive e-mail, on Wednesday, January 3, 2018, that intentionally avoided Defendant's obligation to participate in a Local Rule 37-1 conference. Indeed, counsel merely stated that Defendant "will be sending [Core Optical] a detailed response to your letters shortly."2 (LaPorte Decl. Ex. 5). Wanting to be as reasonable as possible, Core Optical diligently waited for the promised response concerning its interrogatories. None came. Instead, counsel for Defendant sent another e-mail, on Thursday January 4, 2018, that once again ignored Defendant's obligation to participate in a Local Rule 37-1 conference – and that evasively promised: (1) "detailed responses by tomorrow [i.e., Friday, January 5, 2018]; and (2) "supplemental interrogatory responses" at a future, undisclosed date. (LaPorte Decl., Ex. 6). As of the filing date of the this Motion (i.e., January 20, 2018, more than a full month after Core Optical's Local Rule 37-1 letter), Defendant has not provided the promised "detailed responses" or the promised "supplemental interrogatory responses." (LaPorte Decl., ¶8). Nor has Defendant ever offered to participate in the required Local Rule 37-1 pre-filing conference. Id. 2 Counsel for Defendant referenced "letters" (plural) because Core Optical had also sent Defendant a separate Local Rule 37-1 letter concerning its responses to Core Optical's First Set of Requests for the Production of Documents (Nos. 1-82). Defendant similarly ignored this request for a pre-filing conference, which will likely be addressed in a future motion. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 8 of 86 Page ID #:168 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 B. Brief Summary Of Core Optical's Interrogatories 1. Interrogatory No. 1: This interrogatory seeks an identification of each Dual Polarization Product manufactured, used, imported, offered for sale, and/or sold by Infinera in the United States. While Defendant purports to list several products, its "response" is plainly incomplete and evasive – given that Defendant refuses: (1) to admit that any of these products actually meet the definition of "Dual Polarization Product" provided by Core Optical; and (2) to admit that Infinera has made, used, offered for sale, and/or sold any these products on any particular date in the United States.3 In other words, Defendant refuses to admit that any of the products it has listed are responsive to Interrogatory No. 1. Defendant also improperly limits its "response" through the assertion of numerous meritless objections, including: (1) its unilateral narrowing of Core Optical's definition for "Infinera;" (2) its vague and ambiguous comments concerning Core Optical's definition for "Dual Polarization Product;" (3) its misplaced assertion of attorney- client privilege; and (4) its unstated "understanding of the scope of Core Optical's Infringement Contentions." Indeed, this last objection ridiculously implies that Defendant does not have to identify products (products that Defendant manufactured used, imported, offered for sale, and/or sold in the United States) so long as Core Optical has not already specifically accused those products of infringement (with detailed claim charts) in its preliminary infringement contentions – contentions that Core Optical was required to serve well before discovery had even commenced. 2. Interrogatory No. 2: This interrogatory seeks the purported bases for Defendant's affirmative defense and counterclaim of non-infringement (including the reasons Defendant contends each product identified in response to Interrogatory No. 1 does not, and has not, directly or indirectly infringed any claim 3 Defendant's "response" is also incomplete and evasive, in that it carefully omits any mention of Dual Polarization Products that were imported into the United States (an independent act of infringement) – even if not manufactured, used, offered for sale, and/or sold in the United States. See 35 U.S.C. §271. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 9 of 86 Page ID #:169 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 of the '211 patent). Defendant's "response" is intentionally vague, ambiguous, and evasive. While Defendant generically lists approximately 10 limitations from the asserted claims of the '211 patent, it never identifies the specific products that allegedly fail to meet each such limitation. More importantly, Defendant never states why each such product allegedly fails to meet each cited claim limitation (i.e., the facts that allegedly support its affirmative defense/counterclaim). Nor does Defendant identify any alleged errors in Core Optical's preliminary infringement contentions, any documents that allegedly support its defense/counterclaim, or any individuals with knowledge of the documents and/or facts cited in its "response." Defendant compounds its obfuscation: (1) by improperly citing Rule 33(d) without identifying a single, specific document; and (2) by asserting that Core Optical's interrogatory is premature when the Court's Standing Patent Rules endorse early discovery of infringement/invalidity contentions. In fact, with regard to the former, Rule 33(d) is completely inapplicable to Interrogatory No. 2 (regardless of whether Defendant specifically identifies any documents) – as it seeks the alleged bases for Defendant's own affirmative defense and counterclaim, which cannot possibly be divined by Core Optical from mere documents. And, with respect to the latter, Defendant is obviously seeking an unfair tactical advantage, as it cannot indefinitely withhold information concerning its purported affirmative defense and counterclaim of non-infringement when Core Optical was required to provide its preliminary infringement contentions, complete with claim charts, before discovery even commenced. This is especially true where, as here, Defendant plainly has better access to information concerning its own products than does Core Optical. 3. Interrogatory No. 3: This interrogatory seeks a description as to how certain aspects of each product identified in response to Interrogatory No. 1 operate in key respects relating to the '211 patent (including, but not limited to, an identification and detailed description of any and all circuits, filters, techniques, software, or hardware components that cancel or mitigate the effects of cross- Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 10 of 86 Page ID #:170 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 polarization interference or optical impairments such as polarization dependent loss, loss of optical field orthogonality, or polarization mode dispersion). Unlike its "responses" to the first two interrogatories, Defendant does not even attempt to feign a substantive response. Instead, after asserting several meritless objections, Defendant merely cites Rule 33(d) – again without identifying any specific documents (or producing any software). Moreover, Defendant's facially incomplete invocation of Rule 33(d) is again improper (even if specific documents were identified and produced), as, among other reasons detailed below, Defendant is certainly more familiar with its own technical documents (including its source code/software) than is Core Optical. Thus, Defendant can certainly provide the requested information to Core Optical in a far more expeditious and less burdensome manner than for Core Optical to sift through a pile of unfamiliar documents (assuming that all responsive information is even contained within the still-yet-to-be identified/produced documents). 4. Interrogatory Nos. 4 & 5: These interrogatories seek unit sales, revenue, cost, and other financial information for transactions involving products identified in response to Interrogatory No. 1 that occurred after March 23, 2011 (i.e., within six years of the filing date of the Complaint). Indeed, similar interrogatories are propounded (and answered by the accused infringer) in virtually every patent case. Nevertheless, Defendant (after asserting numerous substantively and procedurally defective objections) again "responded" to these interrogatories by merely citing Rule 33(d) – without identifying a single, specific document. In fact, Defendant has not produced even a single document that would arguably contain responsive information. Moreover, even were such documents identified and produced, Defendant's invocation of Rule 33(d) is once again improper, as, among other reasons detailed below, Defendant is certainly more familiar with its own sales and other financial documents than is Core Optical (i.e., the burden of serving or ascertaining responses from documents would again be unequal). It should also Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 11 of 86 Page ID #:171 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 be unquestioned that narrative responses (i.e., responses that do not contain any reference to Rule 33(d)) are imperative, so as to prevent future disputes as to (for example) the precise number of units of each product Defendant actually claims to have sold, leased, licensed, or otherwise transferred after March 23, 2011. 5. Interrogatory No. 6: This interrogatory seeks the purported basis for Defendant's Third Affirmative Defense (entitled "Lack of Standing"). (Dkt. 20, p. 7). Similar to Interrogatory No. 2, Defendant's "response" intentionally avoids providing any factual support for its vague and ambiguous, high-level allegations. In particular, Defendant's entire "response" is couched in terms of its purported "information and belief" – but this "information" and the supposed basis for any such "belief" are repeatedly withheld. For example, Defendant cavalierly asserts that Dr. Mark Core is the "purported inventor of the '211 patent" (emphasis added). Yet, Defendant does not disclose a single fact that even arguably supports an argument that Dr. Core is not the proper named inventor. Nor does Defendant identify any documents that allegedly support its defense/counterclaim or any individuals with knowledge of the documents and/or facts cited in its "response." Defendant also improperly interjects non-responsive attorney argument into both its objections and its "response" that inaccurately accuse Core Optical of failing to provide required disclosures under S.P.R. 2.2 (disclosures provided by Core Optical on October 10, 2017 that Defendant has never substantively raised with the Court). 6. Interrogatory No. 7: This interrogatory seeks information concerning the circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent-in-suit, as well as any subsequent action undertaken by Infinera (including studies, analyses, and examinations of the '211 patent, its scope, or its claims). Defendant again uses its improper, unilateral narrowing of Core Optical's definition for "Infinera" to avoid providing highly probative information concerning the knowledge of numerous individuals/entities (including Defendant's own directors, subsidiaries, affiliates, Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 12 of 86 Page ID #:172 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 and agents). Defendant also improperly limits its "response" to when it allegedly first "became aware" (quotes included) of the existence of the '211 patent – when the interrogatory is not nearly so limited. Indeed, Defendant's use of quotes in its response (as well as its use of the term, "aware," that it objected to as being vague and ambiguous), strongly suggests an attempt to conceal responsive information. Even with these improper limitations, Defendant refuses to provide a specific date and/or to describe any attendant circumstances (merely stating that it first "became aware" of the '211 patent "following the filing of the Complaint in the current action in March 2017"). Defendant also fails to provide any response with respect to subsequent action. Defendant must provide a response: (1) that does not limit the definition of the term "Infinera;" (2) that describes in detail circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent-in-suit; and (3) that describes Infinera's subsequent action. 7. Interrogatory No. 8: This interrogatory seeks the purported bases for Defendant's affirmative defense and counterclaim of invalidity (including an identification of any evidence that allegedly supports or refutes any objective indicia of non-obviousness for each invention claimed in the '211 patent, any supporting documents, and persons with the most knowledge). Incredibly, Defendant does not even attempt to provide a response. Instead, it nonsensically asserts that it need not provide a response until it has had an opportunity to conduct "full discovery" (whatever that phrase means). Defendant ignores that the Court's Standing Patent Rules expressly allow for early discovery concerning allegations of invalidity (let alone an aggressively asserted counterclaim), and that Core Optical is under no obligation to first identify its grounds for validity (as the claims of an issued patent are presumed valid, a presumption that can only possibly be rebutted by clear and convincing evidence). Defendant also fails to identify what "full discovery" is allegedly required, and never explains how its objection has any merit when Defendant has not yet served any discovery in this action. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 13 of 86 Page ID #:173 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 II. Interrogatory No. 1 A. Text Of Core Optical Interrogatory No. 1 Identify in detail (including by name, model number, version number, and dates of distribution/sale) each model, version, or type of Dual Polarization Product ever manufactured, used, offered for sale, or sold by Infinera in the United States (or imported by Infinera into the United States). (LaPorte Decl., Ex. 1, p. 6:9-13). B. Defendant's Response To Interrogatory No. 1 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding each "Dual Polarization Product." Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion and expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Infinera further objects to this Interrogatory as overly broad, vague and ambiguous to the extent it calls for an identification of each "model," "version," and "type." Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and as seeking information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding products "ever" manufactured, used, offered for sale, or sold by Infinera. Infinera further objects to this Interrogatory to the extent it seeks information already in Core Optical's possession or available to Core Optical from other sources that are more convenient, less burdensome or less expensive, including information available to Core Optical from public sources. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 14 of 86 Page ID #:174 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infinera further objects to this Interrogatory as calling for premature legal conclusions regarding what products are "used, offered for sale, or sold by Infinera in the United States (or imported by Infinera into the United States). Infinera further objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine. Infinera further objects to this Interrogatory as attempting to shift the burden of specifically identifying accused products onto Infinera in violation of S.P.R. 2.1. Subject to and without waiving the foregoing general and specific objections, without admitting that any product identified herein meets Core Optical's purported definition of "Dual Polarization Products," and without admitting that Infinera has made, used, sold, or offered to be sold in the United States any particular product on any particular date, and further based upon Infinera's understanding of the scope of Core Optical's Infringement Contentions, Infinera identifies the following products: DTN-X, XTC-2, XTC-2E, XTC-4, XTC-10, XTS-3300, XTS-3600, XT-500, XTM-301/II, XT-3300, XT-3600, XTM-3000/II, XTM-102/II, XTMII, Cloud Xpress, and Cloud Xpress 2 products. (LaPorte Decl., Ex. 2, pp. 9:17-11:3). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 1, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker v. Lakewood Condominium Owners Association, 186 F.R.D. 584, 586-87 (C.D. Cal. 1999)("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 15 of 86 Page ID #:175 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere v. American Water Works Co., 306 F.R.D. 208, 215 (S.D. Ind. 2015)("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). In particular, Defendant's unilateral narrowing of Core Optical's definition of "Infinera" (e.g., to eliminate directors, predecessors, successors, parents, subsidiaries, and affiliates) is a blatant attempt to avoid plainly relevant discovery. Moreover, to the extent the Court entertains any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's Public Source Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant further objects to Interrogatory No. 1 "to the extent it seeks information already in Core Optical's possession or available to Core Optical from other sources that are more convenient, less burdensome or less expensive, including information available to Core Optical from public sources." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection never identifies (or otherwise describes) the responsive information that is allegedly "already in Core Optical's possession or available to Core Optical from other sources that are more convenient, less burdensome or less expensive, including information available to Core Optical from public sources." Further, Defendant cannot premise an objection on its own undisclosed contentions as to what constitutes a "more convenient, less burdensome or less expensive" source and/or a "public source." Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 16 of 86 Page ID #:176 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Second, Defendant's objection is wholly conclusory in nature, and lacks any factual support. Interrogatory No. 1 seeks an identification of certain products manufactured, used, imported, offered for sale, and/or sold by Infinera. Defendant cannot avoid providing such highly probative, responsive information that is clearly available and within its knowledge. Nor has Defendant provided any evidence that the requested information is known by Core Optical and/or publically available. Third, Defendant's objection is substantively deficient. Defendant is required to provide all available, non-privileged, responsive information (without regard to whether the information it is purportedly already known to Core Optical or available from other sources). See, e.g., National Academy of Recording Arts & Sciences, Inc. v. On Point Events, L.P., 256 F.R.D. 678, 682 (C.D. Cal. 2009); Davidson v. Goord, 215 F.R.D. 73, 77 (W.D.N.Y. 2003)(a party may not refuse to respond to a discovery request on the ground that the information is already in the possession of the requesting party); DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 689 (D. Kan. 2004)(a party may not refuse to respond to a discovery request on the ground that the information is more readily available to the requesting party). Moreover, a defendant's admission that it has knowledge of the requested information (supported by a verification made under oath) is itself unquestionably relevant. 3. Defendant's Privilege/Work Product Objection Is Factually Unsupported And Appears Nonsensical Defendant objects to Interrogatory No. 1 "to the extent it seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine." However, Defendant has ignored Core Optical's request for an explanation as to how an interrogatory that asks for an identification of certain products manufactured, used, imported, offered for sale, and/or sold by Infinera in the United States can possibly "seek[] information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine." (LaPorte Decl., Ex. 3, pp. 15-16). Defendant has also ignored Core Optical's requests: (1) to advise Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 17 of 86 Page ID #:177 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Core Optical if Defendant is actually withholding any responsive information based on its objection; and (2) if so, when Defendant will provide an appropriate log concerning any withheld information in accordance with Rule 26(b)(5). Id. Barring a compelling explanation and immediate production of an appropriate privilege log, this objection should be stricken. 4. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant objects to Interrogatory No. 1 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant also states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 1 that is allegedly premature, nor the supposed "legal conclusion" and/or "expert opinion" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway v. Jarden Corp., 292 F.R.D. 676, 679-83 (D. Kan. 2013)(party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Second, Defendant's objection is substantively deficient. Core Optical is plainly entitled to the requested identification at the present time, and Defendant cannot delay such highly probative discovery until the exchange of expert reports. See also, S.P.R. 1.6 (stating that it shall not be a ground for objecting to discovery requests that the request is premature or otherwise conflicts with these Standing Patent Rules – rules that include the timing of expert reports). Moreover, an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. See Fed.R.Civ.P. 33(a)(2). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 18 of 86 Page ID #:178 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Third, Defendant is obviously attempting to obtain an improper tactical advantage, and cannot have it both ways. Given that Core Optical was required to provide its preliminary infringement contentions (S.P.R. 2.1) before discovery even commenced, Defendant cannot delay a response to an interrogatory that simply seeks an identification of a discrete set of products (most, if not all of which, have been manufactured, used, imported, offered for sale, and/or sold by Defendant). 5. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant also objects to Interrogatory No. 1 "as calling for premature legal conclusions regarding what products are 'used, offered for sale, or sold by Infinera in the United States (or imported by Infinera into the United States).'" Defendant's objection is without merit, and should be stricken for at least the same reasons detailed above in connection with Prematurity Objection #1. In fact, these terms have well-settled meanings in this context. See 35 U.S.C. §271(a). Defendant also ignored Core Optical's request for clarification as to how this objection differed, if at all, from Prematurity Objection #1. (LaPorte Decl., Ex. 3, p. 16). 6. Defendant's "Ever" Manufactured, Used, Offered for Sale, or Sold Objection Is Vague And Lacks Substantive Merit Defendant objects to Interrogatory No. 1 "as vague, ambiguous, overbroad, unduly burdensome, and as seeking information that is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding products 'ever' manufactured, used, offered for sale, or sold by Infinera." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 1 that is allegedly "vague, ambiguous, overbroad, [and] unduly burdensome," nor the portion that allegedly seeks information that is "neither Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 19 of 86 Page ID #:179 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 relevant to the subject matter of the litigation nor proportional to the needs of the case." Defendant also fails to explain how Interrogatory No. 1 is allegedly: (1) "vague, ambiguous, overbroad, [and] unduly burdensome;" and (2) "neither relevant to the subject matter of the litigation nor proportional to the needs of the case." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller v. City of Dallas, 303 F.R.D. 466, 490-91 (N.D. Tex. 2014) (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's unsupported assertions lack any semblance of credibility on their very face. This includes Defendant's vague and ambiguous allegation that it would somehow suffer an "undue burden" if required to identify responsive products that Defendant has manufactured, used, offered for sale, or sold in the United States (or that Defendant has imported into the United States). Third, Defendant's objection is substantively deficient. Indeed, it appears Defendant is attempting to place an improper (and unstated) temporal limitation on Interrogatory No. 1. Core Optical is entitled to an identification of the requested products – whenever they were manufactured, used, imported, offered for sale, and/or sold in the United States – as the requested information is plainly relevant to the present action regardless of date (e.g., the date of the hypothetical negotiation; objective indicia of non-obviousness).4 4 Any proportionality factors also overwhelmingly favor Core Optical, including: (1) the importance of the requested information to the issues at stake in the action; (2) the large amount of damages in controversy; (3) Defendant's significant financial resources, especially compared to Core Optical; and (4) Defendant's ease of access to the requested information, especially compared to Core Optical. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 20 of 86 Page ID #:180 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 7. Defendant's "Burden Shifting" Objection Is Nonsensical Defendant objects to Interrogatory No. 1 "as attempting to shift the burden of specifically identifying accused products onto Infinera in violation of S.P.R. 2.1." Defendant's objection should be stricken for at least the following reasons. First, Defendant's objection is nonsensical. Defendant cannot ignore highly probative discovery because it vaguely and ambiguously claims the request "shifts a burden" onto Defendant "in violation of S.P.R. 2.1" – especially when S.P.R. 2.1 only requires Core Optical to provide preliminary infringement contentions, and Core Optical provided those contentions to Defendant over three months ago (on October 10, 2017 – well before Interrogatory No. 1 was even served). See also, S.P.R. 1.6. Tellingly, Defendant has ignored Core Optical's explicit request for any authority supporting Defendant's objection. (LaPorte Decl., Ex. 3, p. 17). Second, Defendant cannot withhold all discovery concerning a product (including its mere identification) merely because that product may not have been specifically accused of infringement (through a detailed claim chart) in a preliminary disclosure made before discovery even commenced. Indeed, that would be tantamount to restricting discovery to only those products for which a patent plaintiff could produce detailed claims charts using only publically available information. Moreover, the requested identification is unquestionably relevant to issues other than acts of infringement within the statute of limitations (e.g., the date of the hypothetical negotiation; objective indicia of non-obviousness). 8. Defendant's "Each Model, Version, and Type" Objection Is Vague And Lacks Substantive Merit Defendant objects to Interrogatory No. 1 "as overly broad, vague and ambiguous to the extent it calls for an identification of each 'model,' 'version,' and 'type.'" Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant never explains why Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 21 of 86 Page ID #:181 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Interrogatory No. 1 is allegedly "overly broad, vague and ambiguous" because it "calls for an identification of each 'model,' 'version,' and 'type.'" See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection tellingly omits a crucial allegation. Defendant does not allege that Interrogatory No. 1 is unduly burdensome – because it cannot. Third, Defendant's objection is substantively deficient. Core Optical is plainly entitled to an identification of all models, versions, and/or types of each responsive product. Of particular note, Defendant failed to respond to Core Optical's compromise request that Defendant stipulate to infringement of all models, versions, and/or types of a particular responsive product – so long as Core Optical establishes infringement of one such model, version, and/or type. (LaPorte Decl., Ex. 3, pp. 18). Defendant cannot possibly argue that Core Optical's request for an identification of all models, versions, and/or types is overbroad if Defendant takes the position that each such model, version, and/or type should be treated separately for purposes of infringement. 9. Defendant's "Each Dual Polarization Product" Objection Is Vague And Lacks Substantive Merit Defendant objects to Interrogatory No. 1 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding 'each Dual Polarization Product.'" Defendant's objection Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 22 of 86 Page ID #:182 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 is without merit, and should be stricken for at least the same reasons discussed above in connection with its "Ever" Manufactured, Used, Offered for Sale, or Sold Objection and its "Each Model, Version, and Type" Objection. Indeed, the requested information is unquestionably relevant to a host of issues, including: (1) additional infringing products; (2) the date of the hypothetical negotiation; (3) a reasonable royalty rate; and (4) objective indicia of non-obviousness. D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 1 Defendant's "response" to Interrogatory No. 1 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken. This includes, but is not limited to, Defendant's meritless (and waived) general objections – such as its improper, unilateral attempt to narrow Core Optical's definition for the term "Infinera." Second, Defendant improperly limits its "response" by stating that it does not admit "that any product identified herein meets Core Optical's purported definition of 'Dual Polarization Products'…" However, Defendant must answer the interrogatory actually posed by Core Optical – which seeks an identification of each Dual Polarization Product (as that term has been defined by Core Optical). Third, Defendant also improperly limits its "response" by stating that it does not admit "that Infinera has made, used, sold, or offered to be sold in the United States any particular product on any particular date…" Defendant must again answer the interrogatory actually posed by Core Optical – which seeks an identification of certain products manufactured, used, offered for sale, or sold by Infinera in the United States (or imported by Infinera into the United States). Fourth, Defendant further improperly limits its "response" by purportedly basing it on Defendant's unstated "understanding of the scope of Core Optical's [Preliminary] Infringement Contentions…." Defendant must once again answer the Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 23 of 86 Page ID #:183 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 interrogatory actually posed by Core Optical – which does not depend, in any way, on the scope of Core Optical's preliminary contentions (let alone Defendant's unstated "understanding of the scope of those contentions"). Fifth, Defendant fails to provide the full identification requested by Core Optical, even for those products listed. Most notably, Defendant fails to address products that were imported into the United States. Defendant also fails to provide the requested information concerning: (1) different models, makes, and types of each Dual Polarization Product; and (2) the dates each product was distributed/sold. Core Optical therefore respectfully seeks an Order compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 1, without objection or limitation, identifying in detail (including by name, model number, version number, and dates of distribution/sale) each model, version, or type of Dual Polarization Product (as that term has been defined by Core Optical) ever manufactured, used, imported, offered for sale, and/or sold by Infinera (as that term has been defined by Core Optical) in the United States. Core Optical also seeks an Order: (1) striking all of Defendant's objections and limitations; (2) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing; and (3) finding that if Core Optical establishes infringement of the '211 patent by one model, make, and/or type of a particular product identified in response to Interrogatory No. 1, that all models, makes, and/or types of that identified product are deemed to infringe the '211 patent. III. Interrogatory No. 2 A. Text Of Core Optical Interrogatory No. 2 Describe in detail any and all bases, including all factual and legal support, for Infinera's First Counterclaim and First Affirmative Defense (as currently set forth, and as amended in the future), including, but not limited to, the reasons Infinera contends each product identified in response to Interrogatory No. 1 does Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 24 of 86 Page ID #:184 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 not, and has not, directly or indirectly infringed any claim of the '211 patent, all inaccuracies in Core Optical's S.P.R. 2.1 Disclosure and accompany charts alleged by Infinera to exist, an identification of all documents that Infinera claims supports its contentions, and an identification of the persons having the most knowledge concerning the facts and documents cited in Infinera's response. (LaPorte Decl., Ex. 1, p. 6:14-23). B. Defendant's Response To Interrogatory No. 2 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera further objects to this Interrogatory to the extent it seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine. Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion or expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Infinera further objects to this Interrogatory as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had the opportunity to conduct full discovery. Infinera further objects that this Interrogatory seeks information prematurely in that this information necessarily needs to be updated periodically, and therefore, Infinera objects that this interrogatory as burdensome and harassing to the extent that Core Optical on the face of this interrogatory intends to seek this information multiple times throughout this litigation rather than at the appropriate time. Discovery is ongoing in this case, and a Markman hearing has not yet been held. Subject to and without limitation or waiver of the foregoing general and specific objections, and based on information presently available, Infinera responds as follows: the Accused Products identified in Core Optical's October 10, 2017 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 25 of 86 Page ID #:185 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infringement Contentions do not meet or practice numerous limitations of the Asserted Claims identified therein, including but not limited to: "a first polarization beam splitter to separate a received optical signal field of the incoming optical signal into orthogonally polarized components" (claim 15) "a cross polarization interference canceler / cancellation network" (claims 15, 17, 23, 25, 32, 35, 37) "a plurality of elements each supporting a transfer function" (claim 15) "a double balanced optical receiver" (claims 16, 17) "wherein the first polarization beam splitter is in communication with one or more receivers being double balanced optical receivers" (claim 17) "a second polarization beam splitter …" (claim 18) "processing the optical signal by (i) separating the optical field of the optical signal into orthogonally polarized field components" (claim 30) "processing the optical signal by … (ii) routing each of the orthogonally polarized field components to a coherent optical receiver" (claim 30) "processing the optical signal by … (iii) transmitting the first and second outputs to a cross polarization interference canceller (XPIC)" (claim 30) "mitigating cross polarization interference …, mitigation of the cross polarization interference is accomplished through a matrix multiplication"; "using a cross polarization interference canceler that produces the recovered signals with the minimum mean square error (MMSE)" (claim 35) Infinera further states that, pursuant to Fed R. Civ. P. 33(d), Infinera will produce documents from which information responsive to this interrogatory may be derived, including in particular in connection with Infinera's upcoming S.P.R. 2.2 production. Infinera is continuing to investigate the subject matter of this interrogatory and reserves the right to amend, supplement, correct, or clarify their responses as new or additional information is obtained. (LaPorte Decl., Ex. 2, pp. 11:15-13:16). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 26 of 86 Page ID #:186 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 2, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's Prematurity Objection #1 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant objects to Interrogatory No. 2 as seeking "information prematurely in that this information necessarily needs to be updated periodically, and therefore, Infinera objects that this interrogatory as [sic] burdensome and harassing to the extent that Core Optical on the face of the interrogatory intends to seek this information multiple times throughout this litigation rather than at the appropriate time….Discovery is ongoing in this case, and a Markman hearing has not yet been held." Defendant's objection should be stricken for at least the following reasons. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 27 of 86 Page ID #:187 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 First, Defendant's objection is unintelligible. And, to the extent it can possibly be understood, it is nonsensical. Defendant cannot unilaterally withhold highly probative discovery until an undisclosed date of its own choosing because it may, at some future time, attempt to update its response. Second, Defendant's objection comprises attorney argument that unfairly impugns Core Optical, especially Defendant's specious allegation that Core Optical is attempting to "harass" Defendant by propounding an interrogatory that seeks the bases, if any, for Defendant's First Counterclaim and its First Affirmative Defense. Third, Defendant's objection is factually inaccurate. Contrary to Defendant's demonstrably false allegation, Core Optical does not state (on the face of the interrogatory, or otherwise) an intent to seek responsive information multiple times throughout this litigation. As is plainly evident, Interrogatory No. 2 merely takes into account the possibility that Defendant may attempt to amend its own pleadings (e.g., change the numbering of its affirmative defenses and/or counterclaims) – and Core Optical takes the eminently reasonable position that it need not serve a new interrogatory if Defendant takes such action. Defendant is, however, obligated to timely update any response pursuant to Fed.R.Civ.P. 26(e) – as a party is required to do for any response to any interrogatory. Fourth, Defendant's vague and ambiguous objection is wholly conclusory in nature. For example, Defendant neither identifies the portion of Interrogatory No. 2 that is allegedly premature, nor "the [supposedly] appropriate time" for its disclosure. Thus, Defendant is not only attempting to improperly delay critical discovery concerning its affirmative defense and counterclaim of non-infringement, it incredibly wants to provide its response at an unsated time of its own choosing. Fifth, Defendant is obviously attempting to obtain an improper tactical advantage, and cannot have it both ways. If Core Optical was required to provide its preliminary infringement contentions (S.P.R. 2.1) prior to the issuance of a claim construction by the Court, there is no reason Defendant should be able to delay Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 28 of 86 Page ID #:188 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 providing the bases, if any, for its affirmative defense and counterclaim of non- infringement until after the issuance of a claim construction by the Court. This is especially true where, as here, Defendant has chosen to assert a counterclaim (and not just an affirmative defense). Sixth, Defendant asserted its First Counterclaim and First Affirmative Defense well prior to a Markman hearing in this case. Thus, it is readily apparent that a Markman hearing is not required for Defendant to provide the bases, if any, for its First Counterclaim and First Affirmative Defense (otherwise they were both asserted in violation of Fed.R.Civ.P. 11). Moreover, both Judge Guilford and the U.S. Patent Trial and Appeal Board have (in the prior Ciena Corp. action and in a prior inter partes review proceeding filed by Fujitsu Network Communications, Inc., respectively) already issued detailed claim constructions for the '211 patent-in-suit. 3. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant also objects to Interrogatory No. 2 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant further states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 2 that is allegedly premature, nor the supposed "legal conclusion" and/or "expert opinion" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 679-83 (party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 29 of 86 Page ID #:189 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Second, Defendant's objection is substantively deficient. Core Optical is plainly entitled to the requested information at the present time, and Defendant cannot delay such highly probative discovery until the exchange of expert reports. See also, S.P.R. 1.6 (stating that it shall not be a ground for objecting to discovery requests that the request is premature or otherwise conflicts with these Standing Patent Rules – rules that include expert reports). Moreover, an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. See Fed.R.Civ.P. 33(a)(2). Third, Defendant is obviously attempting to obtain an improper tactical advantage, and cannot have it both ways. Given that Core Optical was required to provide its preliminary infringement contentions (S.P.R. 2.1) before discovery even commenced, Defendant cannot delay providing the bases, if any, for its affirmative defense and counterclaim of non-infringement until the exchange of expert reports. 4. Defendant's Prematurity Objection #3 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant further objects to Interrogatory No. 2 "as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had an opportunity to conduct full discovery." Defendant's objection is without merit, and should be stricken for at least the same reasons discussed above in connection with Prematurity Objection #1 and Prematurity Objection #2. Defendant is required to provide all responsive information available. This is especially true where, as here, Defendant has failed to identify what "full discovery" is really needed. This is a particularly telling omission given: (1) that Defendant assumedly knows the structure and operation of its own products; and (2) Defendant has not yet served any discovery in this case. 5. Defendant Has Never Supported Its Privilege Objection Defendant objects to Interrogatory No. 2 "as seeking information that is protected by attorney-client privilege, work product doctrine, or any other Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 30 of 86 Page ID #:190 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 applicable privilege or doctrine." However, Defendant has ignored Core Optical's requests: (1) to advise Core Optical if Defendant is actually withholding any responsive information based on this objection; and (2) if so, when Defendant will provide an appropriate log concerning any withheld information in accordance with Fed.R.Civ.P. 26(b)(5). (LaPorte Decl., Ex. 3, p. 25). D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 2 Without Reference To Rule 33(d) Defendant's "response" to Interrogatory No. 2 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken (with the possible exception of Defendant's objection based on the attorney-client privilege). Second, Defendant improperly limits its "response" to "the Accused Products identified in Core Optical's October 10, 2017 Infringement Contentions" and "the Asserted Claims." Defendant must answer the interrogatory actually posed by Core Optical – which seeks the bases, if any, for Defendant's First Counterclaim and First Affirmative Defense (unless Defendant confirms its counterclaim and affirmative defense are strictly limited to those products and claims). Third, Defendant's "response" is vague and ambiguous as to which specific products allegedly fail to satisfy each of the listed claim limitations. In fact, through its use of the phrase "including but not limited to," Defendant admits that it is withholding responsive information. Even more importantly, Defendant intentionally omits any explanation for why each product does not satisfy each cited claim limitation. Defendant cannot broadly contend that products "do not meet or practice numerous limitations of the Asserted Claims" – followed by a laundry list of claim elements – but completely omit the factual reasons each product allegedly does not "meet or practice" each claim element. Again, given that Core Optical Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 31 of 86 Page ID #:191 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 was required to provide its preliminary infringement contentions to Defendant before discovery even commenced and before a claim construction was issued, Defendant is certainly required to provide the bases, if any, for its affirmative defense and counterclaim of non-infringement at this time. Fourth, after avoiding any form of substantive response, Defendant states that "pursuant to Fed. R. Civ. P. 33(d), Infinera will produce documents from which information responsive to this interrogatory may be derived, including in particular in connection with Infinera's upcoming S.P.R. 2.2 production." Defendant's statement is nonsensical, as S.P.R. 2.2 concerns the production of documents by the patent owner (i.e., Core Optical, not Defendant). Further, even ignoring this incongruity, Defendant cannot properly invoke Rule 33(d) – as Interrogatory No. 2 seeks the bases, if any, for Defendant's First Affirmative Defense and First Counterclaim. Indeed, it should be readily apparent that Core Optical cannot discern the entirety of Defendant's non-infringement position from mere documents. Defendant's invocation of Rule 33(d) is also improper because Defendant is certainly more familiar with the contents of its documents than is Core Optical, and Defendant can certainly provide the requested information to Core Optical in a far more expeditious and less burdensome manner than for Core Optical to sift through a pile of unfamiliar documents (assuming, incorrectly, that Interrogatory No. 2 can be answered through a mere reference to documents). See, e.g., T.N. Taube Corp. v. Marine Midland Mortgage Corp., 136 F.R.D. 449, 454-455 (W.D.N.C. 1991). Moreover, even if Defendant could somehow invoke Rule 33(d), which again it cannot, Defendant was required to both: (1) specifically identify the relevant documents and pages (e.g., by Bates number); and (2) provide Core Optical with the same direct and economical access to responsive information as is available to Defendant (e.g., if Defendant has responsive information in summaries and/or an electronic database, those must be made available to Core Optical). See, e.g., Cambridge Electronics Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 322-23 Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 32 of 86 Page ID #:192 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 (C.D. Cal. 2004); Taube, 136 F.R.D. at 455 ("directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery"). See also, the 1980 Advisory Committee Notes for Rule 33(d). Defendant's vague, ambiguous, and generic invocation of Rule 33(d) – which does not reference even a single, specific document, let alone relevant page numbers – is therefore unquestionably improper. Fifth, even ignoring all of the above, Defendant fails to provide all of the information requested, including an identification of: (1) any inaccuracies in Core Optical's October 10, 2017 S.P.R. 2.1 disclosure and accompanying charts; (2) any documents that allegedly support Defendant's affirmative defense/counterclaim; and (3) the persons having the most knowledge concerning the facts and documents cited in Defendant's "response." Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations (with the possible exception of Defendant's objection based on the attorney-client privilege); (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 2, without objection, limitation, or reference to Rule 33(d); and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." Defendant cannot assert generic allegations of non-infringement without identifying any specific factual support. IV. Interrogatory No. 3 A. Text Of Core Optical Interrogatory No. 3 For each Dual Polarization Product identified in response to Interrogatory No. 1, identify and describe in detail each signal processing step or method that is used to recover the data from a received optical signal, including, but not limited to, Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 33 of 86 Page ID #:193 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 an identification and detailed description of any and all circuits, filters, techniques, software, or hardware components that cancel or mitigate the effects of cross- polarization interference or optical impairments such as polarization dependent loss, loss of optical field orthogonality, or polarization mode dispersion. (LaPorte Decl., Ex. 1, pp. 6:25-7:3). B. Defendant's Response To Interrogatory No. 3 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera further incorporates its objections to Interrogatory No. 1 herein. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding each "Dual Polarization Product." Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion or expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Infinera further objects to this Interrogatory as overly broad, vague and ambiguous to the extent it calls for an identification of each "signal processing step or method." Infinera further objects to this interrogatory to the extent it seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine. Infinera further objects to this Interrogatory as hopelessly vague, ambiguous, overbroad, unduly burdensome, and seeks information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding a series of operations at an undefined level of granularity. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 34 of 86 Page ID #:194 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infinera further objects to this Interrogatory as hopelessly vague, ambiguous, overbroad, unduly burdensome, and seeks information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for an identification of "any and all circuits, filters, techniques, software, or hardware components…" related to certain functionality. Infinera further objects to this Interrogatory as overly broad, vague and ambiguous to the extent it calls for information regarding "cancel[ling] or mitigate[ing] the effects of cross-polarization interference" or "optical impairments such as polarization dependent loss, loss of optical field orthogonality, or polarization mode dispersion." Subject to and without waiving the foregoing general and specific objections, pursuant to Fed R. Civ. P. 33(d), Infinera will produce documents from which the answer to this interrogatory may be obtained, including in particular in connection with Infinera's upcoming S.P.R. 2.4 production. (LaPorte Decl., Ex. 2, pp. 14:1- 15:9). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 3, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 35 of 86 Page ID #:195 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's "Interrogatory No. 1" Objection Lacks Substantive Merit And Is Misplaced Defendant states, in response to Interrogatory No. 3, that it further "incorporates its objections to Interrogatory No. 1 herein." Defendant's objection should be stricken, as it lacks substantive merit and is misplaced. In particular, Interrogatory No. 3 references products already identified in Defendant's response to Interrogatory No. 1 – and does not incorporate Interrogatory No. 1 by reference. 3. Defendant's Privilege/Work Product Objection Is Unsupported, And Appears Nonsensical Defendant objects to Interrogatory No. 3 "to the extent it seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine." However, Defendant has ignored Core Optical's request for an explanation as to how an interrogatory that asks for information concerning the structure and operation of products manufactured, used, imported, offered for sale, and/or sold by Infinera possibly "seeks information protected by the attorney-client privilege, the work product doctrine, or other privilege or doctrine." (LaPorte Decl., Ex. 3, p. 30). Defendant has also ignored Core Optical's requests: (1) to advise Core Optical if Defendant is actually withholding any responsive information based on its objection; and (2) if so, when Defendant will provide an appropriate log concerning any withheld information in accordance with Rule 26(b)(5). Id. Barring a compelling explanation and immediate production of a privilege log, this objection should be stricken. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 36 of 86 Page ID #:196 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 4. Defendant's Prematurity Objection Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant objects to Interrogatory No. 3 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant also states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 3 that is allegedly premature, nor the supposed "legal conclusion" and/or "expert opinion" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 679-83 (party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Second, Defendant's objection is substantively deficient. Core Optical is plainly entitled to the requested information concerning the structure/operation of the identified products (manufactured, used, imported, offered for sale, and/or sold by Infinera) prior to the exchange of expert reports. Indeed, S.P.R. 2.6.1 expressly endorses product discovery at an early stage. See also, S.P.R. 1.6 (stating that it shall not be a ground for objecting to discovery requests that the request is premature or otherwise conflicts with these Standing Patent Rules – rules that include the timing of expert reports). Moreover, an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. See Fed.R.Civ.P. 33(a)(2). Third, Defendant's objection is nonsensical. Interrogatory No. 3 seeks information concerning the structure/operation of certain products already identified in response to Interrogatory No. 1. Notably, Defendant ignored Core Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 37 of 86 Page ID #:197 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 32 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Optical's explicit request for clarification as to what "expert opinions" and "legal conclusions" were therefore purportedly being sought. (LaPorte Decl., Ex 3, p. 30). 5. Defendant's "Granularity" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 3 "as hopelessly vague, ambiguous, overbroad, unduly burdensome, and seeks information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding a series of operations at an undefined level of granularity." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is not only unintelligible, it is wholly conclusory in nature and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 3 that is allegedly "hopelessly vague, ambiguous, overbroad, [and] unduly burdensome," nor the portion that allegedly seeks information that is "neither relevant to the subject matter of the litigation nor proportional to the needs of the case." Defendant also fails to explain how Interrogatory No. 3 is allegedly: (1) "hopelessly vague, ambiguous, overbroad, [and] unduly burdensome;" and (2) "neither relevant to the subject matter of the litigation nor proportional to the needs of the case." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's unsupported assertions lack any semblance of credibility on their very face. This includes Defendant's vague and ambiguous allegation that it Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 38 of 86 Page ID #:198 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 would suffer an "undue burden" if required to identify/describe the structure and operation of products that Defendant has manufactured, used, imported, offered for sale, or sold in the United States. Third, Defendant's objection is substantively deficient, especially given: (1) the highly probative nature of the requested information to, at least, infringement of the '211 patent and Core Optical's damages; (2) Defendant's recent assertion that several claim limitations of the '211 patent are governed by the provisions of 35 U.S.C. §112(6)/(f); and (3) the expansive view of relevance embodied in the Federal Rules of Civil Procedure.5 Indeed, Defendant was required to have produced documents (including source code and schematics) sufficient to show the operation of several of its products on December 11, 2017 pursuant to S.P.R. 2.6.1. Fourth, Core Optical is clearly entitled to highly specific information (especially with respect to operation of DSPs and source code/software). This is especially true given Defendant's recent assertion of 35 U.S.C. §112(6)/(f) and its refusal to provide a substantive response to Interrogatory No. 2 (which seeks the bases, if any, for its affirmative defense and counterclaim of non-infringement). Further, any assertion that Core Optical was required to define the level of "granularity" in advance is misplaced, as the responsive information is largely (if not entirely) in Defendant's possession, custody, and/or control. 6. Defendant's Vague/Ambiguous Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 3 "as hopelessly vague, ambiguous, overbroad, unduly burdensome, and seeks information that it is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the 5 Defendant's unsupported proportionality caveat also lacks merit given that all such factors overwhelmingly favor Core Optical, including: (1) the importance of the requested information to the issues at stake in the action; (2) the large amount of damages in controversy; (3) Defendant's significant financial resources, especially compared to Core Optical; and (4) Defendant's ease of access to the requested information, especially compared to Core Optical. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 39 of 86 Page ID #:199 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 34 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 extent it calls for an identification of 'any and all circuits, filters, techniques, software, or hardware components…' related to certain functionality." Defendant's vague and ambiguous objection is without merit, and should be stricken for at least the same reasons discussed above in connection with its "Granularity" Objection. 7. Defendant's Vague/Ambiguous Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant also objects to Interrogatory No. 3 "as overly broad, vague and ambiguous to the extent it calls for information regarding 'cancel[ling] or mitigate[ing] the effects of cross-polarization interference' or 'optical impairments such as polarization dependent loss, loss of optical field orthogonality, or polarization mode dispersion.'" Defendant's vague and ambiguous objection is without merit, and should be stricken for at least the same reasons discussed above in connection with its "Granularity" Objection and Vague/Ambiguous Objection #1. Moreover, Defendant tellingly omits any allegation that Interrogatory No. 3 is unduly burdensome – because it cannot. 8. Defendant's Vague/Ambiguous Objection #3 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant further objects to Interrogatory No. 3 "as overly broad, vague and ambiguous to the extent it calls for an identification of each signal processing step or method." Defendant's unintelligible objection is without merit, and should be stricken for at least the same reasons discussed above in connection with its "Granularity" Objection and Vague/Ambiguous Objections. Moreover, Defendant again tellingly omits any allegation that Interrogatory No. 1 is unduly burdensome. 9. Defendant's Vague/Ambiguous Objection #4 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant further objects to Interrogatory No. 3 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 40 of 86 Page ID #:200 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 extent it calls for information regarding each 'Dual Polarization Product.'" Defendant's objection (merely copied from Interrogatory No. 1, verbatim) is without merit, and should be stricken for at least the same reasons discussed above in connection with its "Granularity" Objection and Vague/Ambiguous Objections. Moreover, the meaning of the complete phrase "[f]or each Dual Polarization Product identified in response to Interrogatory No. 1" is abundantly clear. D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 3 Without Reference To Rule 33(d) Defendant's "response" to Interrogatory No. 3 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken. Second, Defendant's "response" consists of a single evasive statement: "[P]ursuant to Fed. R. Civ. P. 33(d), Infinera will produce documents from which the answer to this interrogatory may be obtained, including in particular in connection with Infinera's upcoming S.P.R. 2.4 production…." Defendant's statement is nonsensical, as S.P.R. 2.4 is directed to the Scheduling Conference held over two months ago (and does not concern the production of documents). Third, even ignoring this incongruity, Defendant cannot properly invoke Rule 33(d) in response to Interrogatory No. 3, as Defendant can provide a full and complete response by simply referring to its own records (including any electronic databases). This is not the type of "burden" contemplated by Rule 33(d). See, e.g., Pascale v. G.D. Searle & Co., 90 F.R.D. 55, 60 (D. R.I. 1981)(holding there must be some "burden" involved in compiling or extracting the requested information, above and beyond the simple task of referring to the records, in order to answer the interrogatory). Invocation of Rule 33(d) is also clearly improper in this instance because Defendant is certainly more familiar with the contents of its technical Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 41 of 86 Page ID #:201 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 documents (including source code/software) than is Core Optical, and Defendant can certainly provide the requested information to Core Optical in a far more expeditious and less burdensome manner than for Core Optical to sift through a pile of unfamiliar documents (assuming all responsive information is even contained within the documents).6 See, e.g., Taube, 136 F.R.D. at 454-55. Moreover, even if Defendant could somehow invoke Rule 33(d), which again it cannot, Defendant was required to both: (1) specifically identify the relevant documents and pages (e.g., by Bates number); and (2) provide Core Optical with the same direct and economical access to responsive information as is available to Defendant (e.g., if Defendant has responsive information in summaries and/or an electronic database, those must be made available to Core Optical). See, e.g., Cambridge Electronics, 227 F.R.D. at 323; Taube, 136 F.R.D. at 455 ("directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery"). See also, the 1980 Advisory Committee Notes for Rule 33(d). Defendant's vague, ambiguous, and generic invocation of Rule 33(d) – which does not reference even a single, specific document, let alone relevant page numbers – is therefore patently improper. Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations; (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 3, without objection, limitation, or reference to Rule 33(d); and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." 6 This is especially true if Defendant attempts to place any physical (e.g., time, place) restrictions on Core Optical's ability to review source code/software and/or otherwise restricts Core Optical's ability to print source code/software. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 42 of 86 Page ID #:202 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 37 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 V. Interrogatory No. 4 A. Text Of Core Optical Interrogatory No. 4 Identify and describe in detail each sale, lease, license, or other transfer of a Dual Polarization Product identified in response to Interrogatory No. 1 (after March 23, 2011) between Infinera and another person, including, but not limited to, the date of each transaction, the location of each transaction, the parties involved in each transaction, the quantity of each product sold or otherwise transferred, the identity of the person purchasing or otherwise obtaining each product, and the revenue (or other consideration) received by Infinera for each product. (LaPorte Decl., Ex 1, p. 7:4-11). B. Defendant's Response To Interrogatory No. 4 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera objects to this interrogatory as seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the [sic], including to the extent it seeks information without the appropriate temporal or geographic limitations. Further, Core Optical has not indicated why the sale of the entire product is relevant, and much of the requested information, such as "date," "location," and "parties involved" in "each transaction" is not relevant to this case. Infinera further objects to this interrogatory as overbroad to the extent it seeks information regarding "each sale …(after March 23, 2011)." Infinera further objects to this interrogatory as overbroad in that it is not restricted only to US sales. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding each "Dual Polarization Product." Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 43 of 86 Page ID #:203 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 38 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion or expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Infinera further objects to this Interrogatory as compound, overbroad, and unduly burdensome because, by its use of the term "[f]or each transaction," it includes multiple subparts that collectively call for a large amount of financial information related to the accused products that is irrelevant to Core Optical’s claims in this case. Infinera further objects to this Interrogatory as vague and ambiguous, including but not limited to the phrases "or other transfer," "otherwise transferred" and "revenue received by Infinera." Infinera further objects that this Interrogatory seeks information prematurely in that this information necessarily needs to be updated periodically, and, therefore, Infinera objects that this interrogatory is burdensome and harassing to the extent Core Optical intends to seek this information multiple times throughout this litigation rather than at the appropriate time. Subject to and without waiving the foregoing general and specific objections, pursuant to Fed R. Civ. P. 33(d), Infinera will produce documents from which information responsive to this interrogatory may be obtained. (LaPorte Decl., Ex 2, pp. 15:20-16:3). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 4, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 44 of 86 Page ID #:204 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's Prematurity Objection #1 Is Vague, Factually Unsupported, And Nonsensical Defendant objects to Interrogatory No. 4 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant also states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 4 that is allegedly premature, nor the supposed "legal conclusion" and/or "expert opinion" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 679-83 (party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Second, Defendant's objection is nonsensical – and appears to have been propounded in bad faith. Indeed, it is readily apparent that an interrogatory seeking Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 45 of 86 Page ID #:205 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 sales and revenue information for products that have already been identified in response to Interrogatory No. 1 does not call for "a premature legal conclusion and expert opinion." Tellingly, Defendant ignored Core Optical's explicit request for any authority to the contrary. (LaPorte Decl., Ex. 3, p. 36). Moreover, an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. See Fed.R.Civ.P. 33(a)(2). See also, S.P.R. 1.6 (stating that it shall not be a ground for objecting to discovery requests that the request is premature or otherwise conflicts with these Standing Patent Rules – rules that include the timing of expert reports). 3. Defendant's Prematurity Objection #2 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant also objects to Interrogatory No. 4 as seeking "information prematurely in that this information necessarily needs to be updated periodically, and therefore, Infinera objects that this interrogatory is burdensome and harassing to the extent Core Optical intends to seek this information multiple times throughout this litigation rather than at the appropriate time." Defendant's objection should be stricken for at least the following reasons. First, Defendant's objection is nonsensical. Defendant cannot unilaterally withhold highly probative sales and other financial information until an undisclosed date of its own choosing because it may, at some future undisclosed time, attempt to update its response. Notably, Defendant ignored Core Optical's request for authority that allegedly supported this objection. (LaPorte Decl., Ex. 3, p. 37). Second, Defendant's objection comprises attorney argument that unfairly impugns Core Optical, especially Defendant's specious allegation that Core Optical is attempting to "harass" Defendant. Interrogatory No. 4 seeks Defendant's sales and other financial information – information that is not only unquestionably relevant, but also sought from and provided by the accused infringer in virtually every patent infringement case. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 46 of 86 Page ID #:206 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Third, Defendant's objection is factually inaccurate. Contrary to Defendant's false allegation, Core Optical does not intend to seek responsive information multiple times throughout this litigation. Defendant is, however, obligated to timely update any response pursuant to Rule 26(e) – as a party is required to do for any response to any interrogatory. Accused infringers also traditionally update sales and financial information for the period between the close of discovery and trial. Fourth, Defendant's vague and ambiguous objection is wholly conclusory in nature. For example, Defendant neither identifies the portion of Interrogatory No. 4 that is allegedly premature, nor "the [supposedly] appropriate time" for disclosure. Thus, Defendant is not only attempting to improperly delay critical discovery, it incredibly wants to provide its response at an unstated time of its own choosing. 4. Defendant's "Each Sale" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 4 "as overbroad to the extent it seeks information regarding 'each sale…(after March 23, 2011)." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant never explains why Interrogatory No. 4 is allegedly "overbroad to the extent it seeks information regarding 'each sale…(after March 23, 2011)." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 47 of 86 Page ID #:207 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Second, Defendant's objection tellingly omits a crucial allegation. Defendant does not allege that Interrogatory No. 4 is unduly burdensome. And, Defendant has carefully avoided making such an assertion – because it would lack credibility. In fact, the requested sales and other financial information is almost certainly available to Defendant with little or no effort (as is suggested by Defendant's attempt to invoke the provisions of Rule 33(d) in its "response"). Third, Defendant's objection is substantively deficient. Core Optical is entitled to all of the requested sales and other financial information (information that, at a minimum, is unquestionably relevant to damages). This is especially true where, as here, Defendant has asserted affirmative defenses that depend on, among other things: (1) specific dates of sale (e.g., marking); and (2) specific customers (e.g., government sales). (Dkt. 20, p. 8). The requested sales and other financial information is also relevant to additional topics, including the objective indicia of non-obviousness. 5. Defendant's "United States" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 4 "as overbroad in that it is not restricted only to US sales." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant never explains why Interrogatory No. 4 is allegedly "overbroad in that it is not restricted only to US sales." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 48 of 86 Page ID #:208 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection again tellingly omits any allegation that Interrogatory No. 4 is unduly burdensome – because it cannot – as the requested sales and other financial information is almost certainly available to Defendant with little or no effort. Third, Defendant's objection is specious. As Defendant is well aware, a product can infringe a United States patent even if it is not "sold" in the United States. For example, manufacture, use, importation, and/or offering for sale are also independent acts of infringement. See 35 U.S.C. §271(a). Fourth, Defendant's objection is substantively deficient. Core Optical is unquestionably entitled to all of the requested sales and other financial information. For example, sales and other financial information for the identified products (even for acts outside the United States) are, at a minimum, relevant to the hypothetical negotiation (e.g., the Georgia Pacific factors) and/or the objective indicia of non- obviousness. They also serve as a credibility "check" on similar domestic information provided by Defendant. 6. Defendant's Duplicative/Omnibus Objection #1 Is Vague, Factually Inaccurate, And Lacks Substantive Merit Defendant objects to Interrogatory No. 4 "as seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the [sic], including to the extent it seeks information without the appropriate temporal or geographic limitations." Defendant also states that "Core Optical has not indicated why the sale of the entire product is relevant, and much of the requested information, such as 'date,' 'location,' and 'parties involved' in 'each transaction' is not relevant to this case." Defendant's objection/statement should be stricken for at least the following reasons. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 49 of 86 Page ID #:209 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support.7 For example, Defendant neither identifies the portion of Interrogatory No. 4 that allegedly seeks information "that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case," nor states what it believes to be the "appropriate temporal [and/]or geographic limitations." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection is facially inaccurate. Contrary to Defendant's false assertion, Interrogatory No. 4 does, in fact, contain an express "temporal… limitation." Third, Defendant's objection is largely (if not entirely) duplicative of other objections. Notably, Defendant failed to respond to Core Optical's request for clarification as to the difference between Defendant's present objection that Interrogatory No. 4 lacks "appropriate…geographic limitations" and its objection (discussed immediately above) that Interrogatory No. 4 is "not restricted only to US sales." (LaPorte Decl., Ex. 3, pp. 39-40). Fourth, Defendant's statement is not even an objection – it is improper attorney argument that appears designed to mislead the reader (including an inaccurate suggestion that Core Optical was required to justify the relevance of the interrogatory in the text of the interrogatory itself). It also improperly presupposes 7 In fact, Defendant's objection is repetitive, unintelligible, and inapplicable – as it was obviously "cut" and "pasted" from another document. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 50 of 86 Page ID #:210 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 that any and all apportionment, convoyed goods, and entire market value rule arguments (related to damages) raised by Defendant will ultimately be adopted by the Court and/or jury. See, e.g., Heller, 303 F.R.D. at 489 (stating that a party cannot refuse to produce requested information simply because it is relevant to a claim on which the producing party believes it will prevail). Defendant's relevance argument is also legally deficient, especially given: (1) the plain relevance of the requested sales and other financial information to damages and the objective indicia of non-obviousness, as discussed above; (2) Defendant's assertion of affirmative defenses that are dependent on date, location, and the parties involved, as also discussed above; and (3) the expansive view of relevance embodied in the Federal Rules of Civil Procedure.8 7. Defendant's Vague/Ambiguous Objection Appears Disingenuous Defendant objects to Interrogatory No. 4 "as vague and ambiguous, including but not limited to the phrases 'or other transfer,' 'otherwise transferred' and 'revenue received by Infinera.'" Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. In particular, Defendant never explains why Interrogatory No. 4 is allegedly "vague and ambiguous" – other than to reproduce the three phrases (and to hedge that its list is non-exhaustive). See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden 8 Defendant's unsupported proportionality caveat also lacks merit given that all such factors overwhelmingly favor Core Optical, including: (1) the importance of the requested sales and revenue information to the issues at stake in the action; (2) the large amount of damages in controversy; (3) Defendant's significant financial resources, especially compared to Core Optical; and (4) Defendant's ease of access to the requested information, especially compared to Core Optical. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 51 of 86 Page ID #:211 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived). And, even for the three identified phrases, Defendant fails to articulate: (1) why they are allegedly vague and ambiguous (especially in this context); (2) what definitions it proposes; and (3) why it believes its definitions are appropriate. See, e.g., Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection lacks any semblance of credibility on its very face, especially given the surrounding context. For example, Defendant's apparent contention that it has no idea what the phrase "revenue received by Infinera" means in the context of Interrogatory No. 4 appears disingenuous. Moreover, Defendant appears to intentionally misquote this phrase, as Interrogatory No. 4 actually seeks the "revenue (or other consideration) received by Infinera." 8. Defendant's Duplicative/Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 4 "as compound, overbroad, and unduly burdensome because, by its use of the term '[f]or each transaction,' it includes multiple subparts that collectively call for a large amount of financial information related to the accused products that is irrelevant to Core Optical's claims in this case." Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant fails to identify the portions of Interrogatory No. 4 that allegedly seek information "that is irrelevant to Core Optical's claims in this case" and/or that are allegedly "overbroad, and unduly burdensome" – let alone state why they are supposedly "irrelevant" and/or "unduly burdensome." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 52 of 86 Page ID #:212 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection is largely (if not entirely) duplicative of other objections. Tellingly, Defendant ignored Core Optical's request for clarification as to the difference between the present objection that Interrogatory No. 4 is "overbroad" because it allegedly seeks information "irrelevant to Core Optical's claims in this case" and Defendant's Duplicative/Omnibus Objection #1. (LaPorte Decl., Ex. 3, pp. 41-42). Third, Defendant's objection is both legally and factually deficient. Indeed, Defendant's unsupported assertions lack any semblance of credibility on their very face – including Defendant's unsupported assertion that it would suffer an "undue burden" if required to provide sales and other financial information for certain products manufactured, used, imported, offered for sale, and/or sold by Defendant. Fourth, Defendant's objection appears intentionally vague and ambiguous as to whether it is actually asserting that Interrogatory No. 4 contains multiple subparts. Interrogatory No. 4 is a single interrogatory that seeks an identification and description of certain transactions. Again, Defendant cannot raise affirmative defenses based on certain date, location, and/or customer restrictions – and then object to providing sales and financial information in such detail. 9. Defendant's "Each Dual Polarization Product" Objection Is Vague, Factually Unsupported, And Lacks Merit Defendant objects to Interrogatory No. 4 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 53 of 86 Page ID #:213 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 48 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 for information regarding each 'Dual Polarization Product.'" Defendant's objection (merely copied from Interrogatory No. 1, verbatim) is without merit, and should be stricken for at least the same reasons discussed above in connection with its Duplicative/Omnibus Objections. D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 4 Without Reference To Rule 33(d) Defendant's "response" to Interrogatory No. 4 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken. Second, Defendant's "response" consists of a single evasive statement: "[P]ursuant to Fed. R. Civ. P. 33(d), Infinera will produce documents from which information responsive to this interrogatory may be obtained." As an initial matter, Defendant intentionally changes the language it utilizes when invoking Rule 33(d), so as to be even more evasive than it was in response to Interrogatory No. 3. See, Defendant's "response" to Interrogatory No. 3 (Defendant "will produce documents from which an answer to Interrogatory No. 3 may be obtained"), as compared to Defendant's "response" to Interrogatory No. 4 (Defendant "will produce documents from which [some, but not all] information responsive to this interrogatory may be obtained"). As such, it is readily apparent Defendant is surreptitiously placing even more improper restrictions into its response. However, more importantly, Defendant cannot properly invoke Rule 33(d) in response to Interrogatory No. 4, as Defendant can provide a full and complete response by simply referring to its own records (including any electronic databases). This is not the type of "burden" contemplated by Rule 33(d). See, e.g., Pascale, 90 F.R.D. at 60 (holding there must be some "burden" involved in compiling or extracting the requested information, above and beyond the simple task of referring Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 54 of 86 Page ID #:214 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 49 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 to records, in order to answer the interrogatory). Invocation of Rule 33(d) is also improper because Defendant is certainly more familiar with the contents of its sales and other financial documents than is Core Optical, and Defendant can certainly provide the requested information to Core Optical in a far more expeditious and less burdensome manner than for Core Optical to sift through a pile of unfamiliar documents (assuming all responsive information is even contained within the documents). See, e.g., Taube, 136 F.R.D. at 454-55. Moreover, even if Defendant could somehow invoke Rule 33(d), which again it cannot, Defendant was required to both: (1) specifically identify the relevant documents and pages (e.g., by Bates number); and (2) provide Core Optical with the same direct and economical access to responsive information as is available to Defendant (e.g., if Defendant has responsive information in summaries and/or an electronic database, those must be made available to Core Optical). See, e.g., Cambridge Electronics, 227 F.R.D. at 323; Taube, 136 F.R.D. at 455 ("directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery"). See also, the 1980 Advisory Committee Notes for Rule 33(d). Defendant's vague, ambiguous, and generic invocation of Rule 33(d) – which does not reference even a single, specific document, let alone relevant page numbers – is therefore patently improper. Indeed, Core Optical is unaware of any sales and/or revenue documents produced by Defendant – almost two months after service of its interrogatory responses. Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations; (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 4, without objection, limitation, or reference to Rule 33(d); and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 55 of 86 Page ID #:215 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." VI. Interrogatory No. 5 A. Text Of Core Optical Interrogatory No. 5 Identify and describe in detail all costs associated with each sale, lease, license, or other transfer of a Dual Polarization Product identified in response to Interrogatory No. 1 (after March 23, 2011) from Infinera to another person, including, but not limited to, the type of cost incurred (e.g., cost of goods sold, shipping fees, taxes), the amount of each cost, an identification of all documents that Infinera claims supports each cost, and an identification of the persons having the most knowledge concerning the facts and documents cited in your response. (LaPorte Decl., Ex. 1, p. 7:12-19). B. Defendant's Response To Interrogatory No. 5 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera objects to this interrogatory as neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the, including to the extent it seeks information without the appropriate temporal or geographic limitations. Moreover, Core Optical has not indicated why costs associated with the sale of the entire product are relevant, and much of the requested information regarding the amount of "each cost" is not relevant to this case. Infinera further objects to this interrogatory as overbroad and unduly burdensome to the extent it seeks information regarding "all costs associated with each sale …(after March 23, 2011)." Infinera further objects to this interrogatory as overbroad in that it is not restricted only to costs associated with US sales. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it is neither relevant to the Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 56 of 86 Page ID #:216 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 51 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding each "Dual Polarization Product." Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion or expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Infinera further objects to this Interrogatory as compound, overbroad, and unduly burdensome because, by its use of the terms "each sale, lease, license, or other transfer," "an identification of all documents that Infinera claims supports each cost," "an identification of the persons having the most knowledge concerning the facts and documents cited," it includes multiple subparts that collectively call for a large amount of financial information related to the accused products that is irrelevant to Core Optical's claims in this case. Infinera further objects to this Interrogatory as vague and ambiguous, including but not limited to the phrases "or other transfer," "type of cost incurred" and "amount of each cost." Infinera further objects that this Interrogatory seeks information prematurely in that this information necessarily needs to be updated periodically, and, therefore, Infinera objects that this interrogatory is burdensome and harassing to the extent ore [sic] Optical intends to seek this information multiple times throughout this litigation rather than at the appropriate time. Subject to and without waiving the foregoing general and specific objections, pursuant to Fed R. Civ. P. 33(d), Infinera will produce documents from which information responsive to this interrogatory may be obtained. (LaPorte Decl., Ex. 2, pp. 17:14-18:25). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 5, that it "incorporates each and every one of its general objections in its response to this Interrogatory by Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 57 of 86 Page ID #:217 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 52 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's Prematurity Objection #1 Is Vague, Factually Unsupported, And Nonsensical Defendant objects to Interrogatory No. 5 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant also states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection propounded by Defendant in response to Interrogatory No. 4. See Section V(C)(2), supra. Most notably, Defendant's objection is nonsensical – as it is readily apparent that an interrogatory seeking cost information for products that have already been identified in response to Interrogatory No. 1 does not call for "a premature legal conclusion and expert opinion." Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 58 of 86 Page ID #:218 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 53 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 3. Defendant's Prematurity Objection #2 Is Inaccurate, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant also objects to Interrogatory No. 5 as seeking "information prematurely in that this information necessarily needs to be updated periodically, and, therefore, Infinera objects that this interrogatory is burdensome and harassing to the extent Core Optical intends to seek this information multiple times throughout this litigation rather than at the appropriate time." Defendant's objection should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection propounded by Defendant in response to Interrogatory No. 4. See Section V(C)(3), supra. In particular, Defendant's allegation that Core Optical is attempting to "harass" Defendant – by seeking cost information (information produced in virtually every patent case) – is specious. Indeed, Core Optical has offered to withdraw Interrogatory No. 5 if Defendant stipulates that it incurred no costs, and that its profits on each identified product met or exceeded its gross revenues. (LaPorte Decl., Ex. 3, p. 47). 4. Defendant's "Each Sale" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 5 "as overbroad to the extent it seeks information regarding 'all costs associated with each sale…(after March 23, 2011)." Defendant's objection should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection propounded by Defendant in response to Interrogatory No. 4. 9 See Section V(C)(4), supra. For example, Defendant avoids any explanation for why the identified portion of Interrogatory No. 5 is allegedly overbroad, tellingly fails to allege that providing a full and complete response would be unduly burdensome (as the information is almost certainly readily available to Defendant), and never asserts that the 9 Importantly, the stated date limitation (March 23, 2011) was set forth in Core Optical's Interrogatory No. 5. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 59 of 86 Page ID #:219 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 54 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 requested information is irrelevant (e.g., either to damages or the secondary indicia of non-obviousness). 5. Defendant's "United States" Objection Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant further objects to Interrogatory No. 5 "as overbroad in that it is not restricted only to costs associated with US sales." Defendant's objection should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection propounded by Defendant in response to Interrogatory No. 4. See Section V(C)(5), supra. For example, Defendant avoids providing any explanation for why Interrogatory No. 5 is allegedly overbroad to the extent it is not limited to costs not "associated with US sales," and again tellingly fails to allege that providing a full and complete response would be unduly burdensome (as the information is almost certainly readily available to Defendant). In fact, Defendant's objection is specious, as Defendant knows a product can infringe a United States patent even if it is not "sold" in the United States. For example, manufacture, use, importation, and/or offering for sale are all independent acts of infringement. See 35 U.S.C. §271(a). Moreover, costs associated with the identified products are relevant to, at least, the objective indicia of non-obviousness, even if the product is not manufactured, used, imported, offered for sale, and/or sold in the United States. These costs also serve as a credibility "check" on any domestic information (e.g., Defendant cannot disproportionally allocate overhead and other costs to products manufactured, used, imported, offered for sale, and/or sold in the United Sates so as to artificially depress its reported profits on those products). 6. Defendant's Duplicative/Omnibus Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 5 "as neither relevant to the subject matter of the litigation nor proportional to the needs of the case, including to the extent it seeks information without the appropriate temporal or geographic Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 60 of 86 Page ID #:220 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 55 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 limitations." Defendant also states that "Core Optical has not indicated why costs associated with the sale of the entire product are relevant, and much of the requested information regarding the amount of 'each cost' is not relevant to this case." Defendant's objection/statement should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection/statement propounded by Defendant in response to Interrogatory No. 4. See Section V(C)(6), supra. For example, Defendant's vague and ambiguous objection/statement: (1) is wholly conclusory in nature, and lacks any factual support; (2) is facially inaccurate, as Interrogatory No. 5 does contain an express temporal limitation; (3) appears wholly duplicative of Defendant's other objections; (4) constitutes improper attorney argument designed to confuse and mislead the jury; and (5) is without substantive merit, as the requested information is plainly relevant to, at least, damages and the secondary indicia of non-obviousness. Moreover, as detailed above in connection with virtually the same objection/statement propounded by Defendant in response to Interrogatory No. 4, Defendant cannot assume that its position on apportionment, convoyed goods, and the entire market value rule will all be adopted by the Court and/or jury. See, e.g., Heller, 303 F.R.D. at 489 (stating that a party cannot refuse to produce requested information simply because it is relevant to a claim on which the producing party believes it will prevail). 7. Defendant's Vague/Ambiguous Objection Appears Disingenuous Defendant objects to Interrogatory No. 5 "as vague and ambiguous, including but not limited to the phrases 'or other transfer,' 'type of cost incurred' and 'amount of each cost.'" Defendant's objection should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. In particular, Defendant never explains why Interrogatory No. 5 is allegedly "vague and ambiguous" – other than to reproduce Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 61 of 86 Page ID #:221 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 the three phrases (and to hedge that this list is non-exhaustive). See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived). And, even for the three identified phrases, Defendant fails to articulate: (1) why they are allegedly vague and ambiguous (especially in this context); (2) what definitions it proposes; and (3) why it believes its definitions are appropriate. See, e.g., Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Second, Defendant's objection lacks any semblance of credibility on its very face, especially given the surrounding context. For example, Defendant's apparent contention that it has no idea what the phrase "amount of each cost" means in the context of Interrogatory No. 5 appears disingenuous. Moreover, Defendant appears to short-quote the phrase "type of cost incurred" (so as to intentionally omit the examples provided by Core Optical) – as the text of Interrogatory No. 5 actually seeks the "type of cost incurred (e.g., cost of goods sold, shipping fees, taxes)." 8. Defendant's Duplicative/Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 5 "as compound, overbroad, and unduly burdensome because, by its use of the terms 'each sale, lease, license, or other transfer,' 'an identification of all documents that Infinera claims supports each cost,' 'an identification of the persons having the most knowledge concerning the facts and documents cited,' it includes multiple subparts that collectively call for a large amount of financial information related to the accused products that is Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 62 of 86 Page ID #:222 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 57 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 irrelevant to Core Optical's claims in this case." Defendant's objection should be stricken for at least the following reasons. First, Defendant's objection is not only unintelligible – it is intentionally vague and ambiguous, wholly conclusory in nature, and lacks any factual support. For example, Defendant fails to identify the portions of Interrogatory No. 5 that allegedly seek information "that is irrelevant to Core Optical's claims in this case" and/or that are allegedly "overbroad, and unduly burdensome" – let alone state why they are supposedly "irrelevant" and/or "unduly burdensome." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived). And, even for the three identified phrases, Defendant fails to articulate: (1) why they are allegedly vague and ambiguous (especially in this context); (2) what definitions it proposes; and (3) why it believes its definitions are appropriate. See, e.g., Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). This especially noteworthy given that Defendant admittedly understood virtually the exact same language in Interrogatory No. 4. Second, Defendant's objection is largely (if not entirely) duplicative of other objections. Tellingly, Defendant ignored Core Optical's request for clarification as to the difference between the present objection that Interrogatory No. 5 is "overbroad" because it allegedly seeks information "irrelevant to Core Optical's claims in this case" and Defendant's Duplicative/Omnibus Objection #1. (LaPorte Decl., Ex. 3, p. 52). Third, Defendant's objection is both legally and factually deficient. Indeed, Defendant's unsupported assertions lack any semblance of credibility on their very Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 63 of 86 Page ID #:223 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 face – including Defendant's unsupported assertion that it would suffer an "undue burden" if required to provide cost information for certain products manufactured, used, imported, offered for sale, and/or sold by Defendant. Fourth, Defendant's objection appears intentionally vague and ambiguous as to whether it is asserting that Interrogatory No. 5 contains multiple subparts. Interrogatory No. 5 is a single interrogatory that seeks an identification and description of certain transactions. Again, Defendant cannot raise affirmative defenses based on certain date, location, and/or customer restrictions – and then object to providing cost information in such detail. 9. Defendant's "Each Dual Polarization Product" Objection Is Vague, Factually Unsupported, And Lacks Merit Defendant objects to Interrogatory No. 5 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding each 'Dual Polarization Product.'" Defendant's objection (merely copied from Interrogatory No. 1, verbatim) should be stricken for at least the same reasons as those discussed above in connection with virtually the same objection propounded by Defendant in response to Interrogatory No. 4. See Section V(C)(9), supra. D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 5 Without Reference To Rule 33(d) Defendant's "response" to Interrogatory No. 5 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken. Second, Defendant's "response" consists of a single evasive statement: "[P]ursuant to Fed. R. Civ. P. 33(d), Infinera will produce documents from which Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 64 of 86 Page ID #:224 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 59 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 information responsive to this interrogatory may be obtained." As an initial matter, Defendant fails to state that "it will produce documents from which an answer to Interrogatory No. 5 may be obtained" (language similar to that used by Defendant in response to Interrogatory No. 3) – and instead states that it "will produce documents from which information responsive to this interrogatory may be obtained." As such, it is clear Defendant is surreptitiously placing improper restrictions into its response. However, more importantly, Defendant cannot properly invoke Rule 33(d) in response to Interrogatory No. 5, as Defendant can provide a full and complete response by simply referring to its own records (including any electronic databases). This is not the type of "burden" contemplated by Rule 33(d). See, e.g., Pascale, 90 F.R.D. at 60 (holding there must be some "burden" involved in compiling or extracting the requested information, above and beyond the simple task of referring to records, in order to answer the interrogatory). Invocation of Rule 33(d) is also improper because Defendant is certainly more familiar with the contents of its cost documents than is Core Optical, and Defendant can certainly provide the requested information to Core Optical in a far more expeditious and less burdensome manner than for Core Optical to sift through a pile of unfamiliar documents (assuming all responsive information is even contained within the documents). See, e.g., Taube, 136 F.R.D. at 454-55. Moreover, even if Defendant could somehow invoke Rule 33(d), which again it cannot, Defendant was required to both: (1) specifically identify the relevant documents and pages (e.g., by Bates number); and (2) provide Core Optical with the same direct and economical access to responsive information as is available to Defendant (e.g., if Defendant has responsive information in summaries and/or an electronic database, those must be made available to Core Optical). See, e.g., Cambridge Electronics, 227 F.R.D. at 323; Taube, 136 F.R.D. at 455 ("directing the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery"). See also, the 1980 Advisory Committee Notes Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 65 of 86 Page ID #:225 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 60 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 for Rule 33(d). Defendant's vague, ambiguous, and generic invocation of Rule 33(d) – which does not reference even a single, specific document, let alone relevant page numbers – is therefore patently improper. Indeed, Core Optical is unaware of any cost documents produced by Defendant – almost two months after service of its interrogatory responses. Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations; (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 5, without objection, limitation, or reference to Rule 33(d); and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing. This includes, but is not limited to, an Order precluding Defendant from claiming or otherwise asserting any costs relating to its sale, lease, license, or other transfer of any Dual Polarization Product identified in response to Interrogatory No. 1. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." VII. Interrogatory No. 6 A. Text Of Core Optical Interrogatory No. 6 Describe in detail any and all bases, including all factual and legal support, for Infinera's Third Affirmative Defense (as currently set forth, and as amended in the future), including, but limited to, the reasons Infinera contends Core Optical does not own the rights to the '211 patent, an identification of all documents that Infinera claims supports its contentions, and an identification of the persons having the most knowledge concerning the facts and documents cited in Infinera's response. (LaPorte Decl., Ex. 1, p. 7:20-27). B. Defendant's Response To Interrogatory No. 6 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 66 of 86 Page ID #:226 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infinera further objects to this request as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had the opportunity to conduct full discovery. In particular, Infinera further objects that this interrogatory as [sic] premature in that information responsive to this interrogatory is believed to be in the possession of Core Optical and/or Mark Core, and that Core Optical failed to produce this information in connection with Core Optical's obligations under S.P.R. 2.2. Infinera further objects to this Interrogatory as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or immunity. Infinera further objects to the phrase "does not own the rights to the '211 patent" as vague and ambiguous. Subject to and without waiving the foregoing general and specific objections, the inventor of the '211 patent, on information and belief, the purported inventor of the '211 patent, Mark Core, either assigned or was under multiple obligations to assign the rights to the application that led to the '211 patent at the time of the purported invention thereof. The assignments and/or obligations to assign include obligations to the University of California… Further information responsive to this request is believed to be in the possession of Core Optical and/or Mark Core. Infinera is continuing to investigate the subject matter of this interrogatory and will further respond to this interrogatory as discovery and the case progresses, including in particular once Core Optical has complied with its obligations under S.P.R. 2.2. (LaPorte Decl., Ex. 2, pp. 19:9-20:8). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 6, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 67 of 86 Page ID #:227 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 62 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's Vague/Ambiguous Objection Illustrates A Failure To Participate In Discovery In Good Faith Defendant objects to Interrogatory No. 6 because the phrase "does not own the rights to the '211 patent" is allegedly "vague and ambiguous." Defendant's objection illustrates a failure to participate in discovery in good faith. Specifically, the phrase to which Defendant objects is taken directly from the text of its own Third Affirmative Defense – which states "[u]pon information and belief, Plaintiff lacks standing to assert infringement of the '211 patent because it does not own the rights to the '211 patent" (emphasis added). (Dkt. 20, p. 7). In other words, Defendant incredibly alleges that it cannot answer an interrogatory that clearly and unmistakably seeks the bases, if any, for its own Third Affirmative Defense (entitled "Lack of Standing") – because it now asserts the very language it used to plead its own Third Affirmative Defense is vague and ambiguous. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 68 of 86 Page ID #:228 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 63 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 3. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant objects to Interrogatory No. 6 "as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had the opportunity to conduct full discovery." Defendant's objection should be stricken for at least the following reasons. First, Defendant's intentionally vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 6 that is allegedly premature, nor the supposed "full discovery" needed. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived). Second, Defendant's objection is substantively deficient. Core Optical is plainly entitled to all responsive facts currently available to Defendant (especially when its affirmative defense was intentionally pled with absolutely no factual support). Importantly, Core Optical is entitled to a full and fair opportunity to propound discovery in response to Defendant's contentions (i.e., Defendant cannot withhold its response to Interrogatory No. 6 so as to prejudice Core Optical's ability to obtain responsive discovery). This is especially true where, as here, Core Optical may have to respond to Defendant's standing allegations before the close of discovery. It is also noteworthy that Defendant's alleged need for an "opportunity to conduct full discovery" appears disingenuous given that Defendant has not yet propounded any discovery in this case (and discovery has been open for months). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 69 of 86 Page ID #:229 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 64 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 4. Defendant's Prematurity Objection #2 Constitutes Improper And Inaccurate Attorney Argument Defendant also "objects" to Interrogatory No. 6 "as premature in that information responsive to this interrogatory is believed to be in the possession of Core Optical and/or Mark Core, and that Core Optical failed to produce this information in connection with Core Optical's obligations under S.P.R. 2.2." Defendant's "objection" should be stricken for at least the following reasons. First, Defendant's "objection" is not a recognized objection. It is improper attorney argument, and appears designed to confuse and mislead a jury. Second, Defendant's "objection" is factually inaccurate. Core Optical fully complied with Standing Patent Rule 2.2 over three months ago (i.e., on October 10, 2017), and Defendant has never substantively raised any issues with the Court. Given this inaction, Defendant cannot make such unsubstantiated allegations in an interrogatory "objection." Third, Defendant's "objection" comprises mere speculation that impugns the character of Core Optical and Dr. Core (the named inventor of the '211 patent). Again, it is fundamentally unfair (and improper) for Defendant to suggest in an objection that Core Optical and/or Dr. Core have failed to comply with discovery obligations when Defendant has never substantively raised the issue with the Court. 5. Defendant Has Never Supported Its Privilege Objection Defendant also objects to Interrogatory No. 6 "as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or doctrine." However, Defendant has ignored Core Optical's requests: (1) to advise Core Optical if Defendant is actually withholding any responsive information based on this objection; and (2) if so, when Defendant will provide an appropriate log concerning any withheld information in accordance with Rule 26(b)(5). (LaPorte Decl., Ex. 3, p. 57). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 70 of 86 Page ID #:230 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 65 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 6 Defendant's "response" to Interrogatory No. 6 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken (with the possible exception of Defendant's objection based on the attorney-client privilege). Second, Defendant's "response" refers to Dr. Mark Core as the "purported inventor of the '211 patent" (emphasis added). However, Defendant fails to provide any factual support for this improper qualification. More importantly, Defendant's response is equally incomplete and evasive with respect to all of its other standing allegations. In particular, Defendant's entire "response" is couched in terms of its purported "information and belief" – but this "information" and the supposed basis for any such "belief" are repeatedly (and intentionally) withheld. Third, Defendant's "response" contains improper and non-responsive attorney argument and supposition that unfairly and inaccurately impugns Core Optical and Dr. Core. This includes Defendant's allegations: (1) that "Infinera is continuing to investigate the subject matter of this interrogatory and will further respond to this interrogatory as discovery and the case progresses, including in particular once Core Optical has complied with its obligations under S.P.R. 2.2;" and (2) that "[f]urther information responsive to this request is believed to be in the possession of Core Optical and/or Mark Core." Indeed, as discussed above, Core Optical fully complied with its S.P.R. 2.2 obligations over three months ago – and Defendant has never substantively raised the issue with the Court. Fourth, even ignoring all of the above, Defendant fails to provide all of the information requested, including an identification of: (1) any documents that allegedly support Defendant's affirmative defense/counterclaim; and (2) the persons Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 71 of 86 Page ID #:231 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 66 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 having the most knowledge concerning the facts and documents cited in Defendant's "response." Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations (with the possible exception of Defendant's objection based on the attorney-client privilege); (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 6, without objection or limitation; and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." Defendant cannot assert generic allegations concerning standing without identifying any specific factual support. VIII. Interrogatory No. 7 A. Text Of Core Optical Interrogatory No. 7 Identify and describe in detail the circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent, as well as any subsequent action undertaken by Infinera or another person on its behalf, including, but not limited to, all studies, analyses, and examinations of the '211 patent, its scope, or its claims. (LaPorte Decl., Ex. 1, p. 8:1-6). B. Defendant's Response To Interrogatory No. 7 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera further objects to this Interrogatory as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or immunity. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 72 of 86 Page ID #:232 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 67 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 it calls for a "descri[ption] in detail" of certain "circumstances" related to the existence of the '211 patent. Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for [sic] Infinera further objects to this Interrogatory to the extent that it calls for premature legal conclusions, particularly with respect to the terms "aware" and "otherwise obtained knowledge." Infinera further objects to this Interrogatory as vague, ambiguous, overly broad and unduly burdensome regarding the terms "relating to the '211 patent," "aware," "otherwise obtained knowledge," "studies," "analyses," and "examinations." Infinera further objects to this Interrogatory as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding "any subsequent action undertaken by Infinera or another person on its behalf, including, but not limited to, all studies, analyses, and examinations of the '211 patent, its scope, or its claims." Subject to and without waiving the foregoing general and specific objections, Infinera responds as follows: Infinera first "became aware" of the existence of the '211 patent following the filing of the Complaint in the current action in March 2017. Infinera is continuing to investigate the subject matter of this interrogatory and reserves the right to amend, supplement, correct, or clarify their [sic] responses as new or additional information is obtained. (LaPorte Decl., Ex. 2, pp. 20:17- 21:24). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 73 of 86 Page ID #:233 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 68 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 7, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). In particular, Defendant's unilateral narrowing of Core Optical's definition of "Infinera" (e.g., to eliminate directors, predecessors, successors, parents, subsidiaries, and affiliates) is a blatant attempt to avoid plainly relevant discovery. Moreover, to the extent the Court entertains any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant Has Never Supported Its Privilege Objection Defendant objects to Interrogatory No. 7 "as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or doctrine." However, Defendant has ignored Core Optical's requests: (1) to advise Core Optical if Defendant is actually withholding any responsive information based on this objection; and (2) if so, when Defendant will Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 74 of 86 Page ID #:234 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 69 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 provide an appropriate log concerning any withheld information in accordance with Rule 26(b)(5). (LaPorte Decl., Ex. 3, p. 63). The latter is especially important (including the dates of any responsive communications purportedly covered by the attorney-client privilege, the work product doctrine, or any other privilege or doctrine – as well as the individuals involved). 3. Defendant's Omnibus Objection #1 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant objects to Interrogatory No. 7 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for a 'descri[ption] in detail' of certain 'circumstances' related to the existence of the '211 patent." Defendant's objection should be stricken for at least the following reasons. First, Defendant's objection is intentionally vague and ambiguous (if not unintelligible), wholly conclusory in nature, and lacks factual support. For example, Defendant fails to specifically identify the portions of Interrogatory No. 7 that allegedly seek information "that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case" and/or that are allegedly "vague, ambiguous, overbroad, [and] unduly burdensome" – let alone state why they are supposedly "irrelevant" and/or "vague, ambiguous, overbroad, [and] unduly burdensome." See, e.g., Deere, 306 F.R.D. at 215 ("reflexive invocation" of the "often abused litany that the requested discovery is vague, ambiguous, overly broad, unduly burdensome or irrelevant" will not suffice); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived); Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 75 of 86 Page ID #:235 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Second, Defendant's objection is substantively deficient. The circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent is plainly relevant to, at least, Defendant's infringement (including the willfulness of that infringement). Defendant cannot avoid an interrogatory that seeks information that would expose pre-Complaint knowledge by unilaterally (and improperly) narrowing the definition of "Infinera" – especially when that narrowing is coupled with the placement of quotes around the phrase "became aware" and an unsupported claim of privilege/work product. Third, Defendant's unsupported assertions lack any semblance of credibility on their very face – most notably its assertion that it would suffer an "undue burden" if required to provide a description of the circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent. Indeed, Defendant's "undue burden" objection would appear wholly inconsistent with its purported "response" (i.e., that it first "became aware" of the '211 patent "following the filing of the Complaint in the current action in March 2017"). Moreover, the obvious relevance of the requested information would certainly outweigh any unsupported claim of burden.10 4. Defendant's Omnibus Objection #2 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant also objects to Interrogatory No. 7 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for information regarding 'any subsequent action 10 Defendant's unsupported proportionality caveat also lacks merit given that all such factors overwhelmingly favor Core Optical, including: (1) the importance of the requested information to the issues at stake in the action; (2) the large amount of damages in controversy; (3) Defendant's significant financial resources, especially compared to Core Optical; and (4) Defendant's ease of access to the requested information, especially compared to Core Optical. Moreover, virtually all of the requested information is known only by Defendant and its affiliates/agents. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 76 of 86 Page ID #:236 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 71 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 undertaken by Infinera or another person on its behalf, including, but not limited to, all studies, analyses, and examinations of the '211 patent, its scope, or its claims.'" Defendant's objection is without merit, and should be stricken for at least those reasons set forth above in connection with its Omnibus Objection #1. For example, information relating to subsequent action undertaken by Infinera or another person on its behalf (including, but not limited to, studies, analyses, and examinations of the '211 patent, its scope, or its claims) is unquestionably relevant to, at least, infringement (including the willfulness of Defendant's infringement) and validity. 5. Defendant's Omnibus Objection #3 Again Illustrates A Failure To Participate In Discovery In Good Faith Defendant further objects to Interrogatory No. 7 "as vague, ambiguous, overbroad, unduly burdensome, and seeking information that it [sic] is neither relevant to the subject matter of the litigation nor proportional to the needs of the case to the extent it calls for" [sic]. This obviously incomplete objection again confirms that Defendant took a "cut and paste" approach to its objections (i.e., Defendant did not carefully craft targeted objections, but merely copied "boilerplate" objections from another document, not to preserve any legitimate objections, but to obfuscate discovery and to needlessly increase the cost of litigation). 6. Defendant's Omnibus Objection #4 Is Vague, Factually Unsupported, And Lacks Substantive Merit Defendant yet again objects to Interrogatory No. 7 "as vague, ambiguous, overly broad and unduly burdensome" regarding the terms "relating to the '211 patent," "aware," "otherwise obtained knowledge," "studies," "analyses," and "examinations." Defendant's objection is without merit, and should be stricken for at least those reasons set forth above in connection with its Omnibus Objection #1 and Omnibus Objection #2. Moreover, Defendant ignored Core Optical's request for an explanation how this objection differed, if at all, from its Omnibus Objection #1 and/or Omnibus Objection #2. (LaPorte Decl., p. 62). Indeed, when combined with Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 77 of 86 Page ID #:237 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 72 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 its other objections, it is clear Defendant chose to object to virtually every word in Interrogatory No. 7 (including many commonly used terms) – without providing any explanation for its objections or definitions of its own. See, e.g., Heller, 303 F.R.D. at 490-91 (objecting party must explain the specific and particular way in which the request is allegedly vague, ambiguous, overbroad, and/or unduly burdensome). 7. Defendant's Prematurity Objection Is Vague, Factually Unsupported, And Nonsensical Defendant objects to Interrogatory No. 7 "to the extent it calls for premature legal conclusions, particularly with respect to the terms 'aware' and 'otherwise obtained knowledge.'" Defendant's objection is without merit, and should be stricken for at least the following reasons. First, Defendant's vague and ambiguous objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 7 that is allegedly premature, nor the supposed "legal conclusions" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 679-83 (party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Second, Defendant's "boilerplate" objection is nonsensical. Interrogatory No. 7 seeks information concerning Infinera's knowledge and subsequent action. No legal conclusions are requested. Moreover, virtually all responsive information is, by definition, already known by Defendant. Again, Defendant's objections strongly suggests there is more responsive information than it has thus far provided. D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 7 Defendant's "response" to Interrogatory No. 7 is evasive and patently incomplete, for at least the following reasons. First, Defendant improperly limits Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 78 of 86 Page ID #:238 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 73 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 its "response" through assertion of meritless objections. As detailed above, these objections should all be stricken (with the possible exception of Defendant's objection based on the attorney-client privilege). This includes, but is not limited to, Defendant's meritless (and waived) general objections – such as its improper, unilateral attempt to narrow Core Optical's definition for the term "Infinera." Second, Defendant improperly limits its "response" to when Infinera "first 'became aware'" of the existence of the '211 patent. However, Defendant must answer the interrogatory actually posed by Core Optical – which seeks, in part, the circumstances by which Infinera became aware of or otherwise obtained knowledge relating to the existence of the '211 patent. Third, Defendant's use of quotes around the term "became aware" (after objecting to the term "aware" as being vague and ambiguous) is not only improper, it is tantamount to an admission that Defendant is being intentionally evasive and is withholding responsive information. Indeed, Defendant does not even provide an exact date in its improperly limited "response." Instead, Defendant uses the open- ended phrase "following the filing of the Complaint in March 2017" (leaving it ambiguous as to whether Infinera allegedly "became aware" of the '211 patent in March 2017, or just that the Complaint was filed in March 2017). Fourth, Defendant's assertion that "Infinera is continuing to investigate the subject matter of this interrogatory and reserves the right to amend, supplement, correct, or clarify their responses as new or additional information is obtained" (emphasis added) is non-responsive, improper attorney argument. It also misstates Defendant's ability to supplement its response under Rule 26(e). Moreover, it is absolutely nonsensical – as Defendant has always had knowledge of virtually all responsive information (if not all responsive information). Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations (with the possible exception of Defendant's objection based on the attorney-client privilege); (2) compelling Defendant to Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 79 of 86 Page ID #:239 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 74 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 immediately provide a full and complete, verified response to Interrogatory No. 7, without objection or limitation; and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such information in connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." IX. Interrogatory No. 8 A. Text Of Core Optical Interrogatory No. 8 Describe in detail any and all bases, including all factual and legal support, for Infinera's Second Counterclaim and Second Affirmative Defense (as currently set forth, and as amended in the future), including, but limited to, an identification of any evidence that supports or refutes any objective indicia of non-obviousness for each invention claimed in the '211 patent, a detailed description as to how each such indicia allegedly supports or refutes Infinera's claim/defense, a detailed description of the alleged nexus between each indicia and each invention claimed in the '211 patent, an identification of all documents that Infinera claims supports its contentions, and an identification of the persons having the most knowledge concerning the facts and documents cited in Infinera's response. (LaPorte Decl., Ex. 1, p. 8:7-17). B. Defendant's Response To Interrogatory No. 8 Infinera incorporates each and every one of its general objections in its response to this Interrogatory by reference. Infinera further objects to this Interrogatory as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or immunity. Infinera further objects to this Interrogatory on the grounds that it calls for a premature legal conclusion and expert opinion. Infinera will disclose such expert opinions in connection with the procedural schedule and rules of this Court. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 80 of 86 Page ID #:240 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 Infinera further objects to this request as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had the opportunity to conduct full discovery. Infinera further objects to this interrogatory as inappropriately attempting to shift the burden to Infinera of demonstrating objective indicia of non-obviousness (or lack thereof), particularly given that Core Optical has not identified any purported indicia of non-obviousness as of this time. Subject to and without waiving the foregoing general and specific objections, Infinera is continuing to investigate the subject matter of this interrogatory and will further respond to this interrogatory as discovery and the case progresses. (LaPorte Decl., Ex. 2, pp. 22:13-23:5). C. Defendant's Objections Should Be Stricken 1. Defendant's Use Of Generalized Objections Is Improper Defendant states, in response to Interrogatory No. 8, that it "incorporates each and every one of its general objections in its response to this Interrogatory by reference." Defendant's assertion of almost six (6) pages of text containing at least 30 generalized objections is patently improper, and should be stricken. See Fed.R.Civ.P. 33(b)(4)("The grounds for objecting to an interrogatory must be stated with specificity"). See also, e.g., Walker, 186 F.R.D. at 586-87 ("If objections are interposed instead of answers, 'the objecting party shall state the reasons for the objection' and 'all grounds for an objection to an interrogatory shall be stated with specificity.' Rule 33(b)(1) & (4). Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all."); Deere, 306 F.R.D. at 215 ("'General objections' made without elaboration, whether placed in a separate section or repeated by rote in response to each requested category are not 'objections' at all – and will not be considered"). Moreover, to the extent the Court might entertain any of Defendant's General Objections, Objections to Definitions, and/or Objections to Instructions, Core Optical addressed their lack Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 81 of 86 Page ID #:241 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 76 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 of procedural and substantive merit, in detail, in its Local Rule 37-1 correspondence dated December 19, 2017. (LaPorte Decl., Ex. 3, pp. 2-12). 2. Defendant's "Burden Shifting" Objection Is Nonsensical Defendant objects to Interrogatory No. 8 "as inappropriately attempting to shift the burden to Infinera of demonstrating objective indicia of non-obviousness (or lack thereof), particularly given that Core Optical has not identified any purported indicia of non-obviousness as of this time." Defendant's objection is nonsensical, and should be stricken. Core Optical is plainly entitled to discovery as to the bases, if any, for Defendant's affirmative defense and counterclaim for invalidity, and need not first provide its rebuttal. Indeed, and as Defendant is well aware, the claims of Core Optical's '211 patent-in-suit are presumed valid. Moreover, Defendant has tellingly failed to respond to Core Optical's inquiries seeking: (1) any legal authority that allegedly supports Defendant's objection; and (2) any factual support for Defendant's apparent belief that Core Optical was required to have already provided "any purported indicia of non-obviousness." (LaPorte Decl., Ex. 3, p. 65). 3. Defendant's Prematurity Objection #1 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant objects to Interrogatory No. 8 "as premature to the extent it seeks discovery concerning Infinera's contentions in this matter before Infinera has had the opportunity to conduct full discovery." Defendant also states that it "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection should be stricken for at least the following reasons. First, Defendant's intentionally vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant neither identifies the portion of Interrogatory No. 8 that is allegedly premature, nor the supposed "full discovery" needed. See, e.g., Deere, 306 F.R.D. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 82 of 86 Page ID #:242 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 77 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 680 (party resisting discovery has the burden of supporting its objections; characterizing "to the extent" objections as "worthless for anything beyond delay of the discovery," and thus waived). Second, Defendant's objection is substantively deficient. Core Optical is plainly entitled to all responsive facts, if any, currently available to Defendant (especially when its affirmative defense and counterclaim were intentionally pled with absolutely no factual support). Importantly, Core Optical is entitled to a full and fair opportunity to propound discovery in response to Defendant's contentions (i.e., Defendant cannot withhold its response to Interrogatory No. 8 so as to prejudice Core Optical's ability to obtain responsive discovery). Moreover, the Court's Standing Patent Rules expressly provide for early discovery of invalidity contentions – and that date has long passed. See, e.g., S.P.R. 2.5. It is also noteworthy that Defendant's alleged need for an "opportunity to conduct full discovery" appears disingenuous given that Defendant has not yet propounded any discovery in this case (and discovery has been open for months). Third, Defendant is obviously attempting to obtain an improper tactical advantage, and cannot have it both ways. Given that Core Optical was required to provide its preliminary infringement contentions (S.P.R. 2.1) before discovery even commenced, Defendant cannot delay its invalidity contentions. This is especially true where, as here, Defendant has voluntarily chosen to assert a counterclaim alleging that claims of the '211 patent are invalid (when the claims of the '211 patent are presumed valid). 4. Defendant's Prematurity Objection #2 Is Vague, Lacks Substantive Merit, And Seeks An Improper Advantage Defendant also objects to Interrogatory No. 8 "on the grounds that it calls for a premature legal conclusion and expert opinion." Defendant also states that it Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 83 of 86 Page ID #:243 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 "will disclose such expert opinions in connection with the procedural schedule and rules of this Court." Defendant's objection/statement should be stricken for at least the following reasons. First, Defendant's vague and ambiguous "boilerplate" objection is wholly conclusory in nature, and lacks any factual support. For example, Defendant again fails to identify the portion of Interrogatory No. 8 that is allegedly premature, let alone the supposed "legal conclusion" and/or "expert opinion" allegedly sought. See, e.g., Deere, 306 F.R.D. at 215 ("The party objecting to a discovery request bears the burden to show why a particular discovery request is improper"); Gassaway, 292 F.R.D. at 679-83 (party resisting discovery has the burden of supporting its objections unless the request is facially objectionable). Second, Defendant's objection is substantively deficient. Again, Core Optical is plainly entitled to all facts currently available to Defendant, if any, that support its Second Counterclaim and/or Second Affirmative Defense of invalidity, and Defendant cannot delay such highly probative discovery until the exchange of expert reports. Again, the Court's Standing Patent Rules expressly provide for early discovery of invalidity contentions – and that date has long passed. See, e.g., S.P.R. 2.5. See also, S.P.R. 1.6 (stating that it shall not be a ground for objecting to discovery requests that the request is premature or otherwise conflicts with these Standing Patent Rules – rules that include the timing of expert reports). Moreover, an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact. See Fed.R.Civ.P. 33(a)(2). Third, Defendant is obviously attempting to obtain an improper tactical advantage, and cannot have it both ways. Again, given that Core Optical was required to provide its preliminary infringement contentions (S.P.R. 2.1) before discovery even commenced, Defendant cannot delay its invalidity contentions – let alone until the exchange of expert reports. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 84 of 86 Page ID #:244 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 79 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 5. Defendant Has Never Supported Its Privilege Objection Defendant objects to Interrogatory No. 8 "as seeking information that is protected by attorney-client privilege, work product doctrine, or any other applicable privilege or doctrine." However, Defendant has ignored Core Optical's requests: (1) to advise Core Optical if Defendant is actually withholding any responsive information based on this objection; and (2) if so, when Defendant will provide an appropriate log concerning any withheld information in accordance with Rule 26(b)(5). (LaPorte Decl., Ex. 3, p. 67). D. Defendant Must Provide A Full And Complete, Non-Evasive, Verified Response To Interrogatory No. 8 Defendant has failed to provide any response to Interrogatory No. 8. Further, Defendant's statement that it "is continuing to investigate the subject matter of this interrogatory and will further respond to this interrogatory as discovery and the case progresses" is non-responsive, meaningless attorney-argument. Defendant chose to assert an affirmative defense and to file a counterclaim, and Core Optical is entitled to all information currently available to Defendant that allegedly supports that affirmative defense and/or that counterclaim.11 Core Optical therefore respectfully seeks an Order: (1) striking all of Defendant's objections and limitations (with the possible exception of Defendant's objection based on the attorney-client privilege); (2) compelling Defendant to immediately provide a full and complete, verified response to Interrogatory No. 8, without objection or limitation (or reference to Rule 33(d)); and (3) precluding Defendant from introducing, at trial, any responsive information that Defendant continues to withhold beyond any ordered response date, or from use of any such 11 Defendant has provided Core Optical with disclosures concerning invalidity. See S.P.R. 2.5. However, these disclosures are not a substitute for a full and complete response to Interrogatory No. 8, as Interrogatory No. 8 is (in several aspects) broader than the disclosure requirements of S.P.R. 2.5. Moreover, S.P.R. 2.5 disclosures need not be verified under oath. Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 85 of 86 Page ID #:245 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS AT LAW LOS ANGELES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 80 Core Optical's Memorandum in Support of its Motion to Compel Full and Complete Responses to Interrogatory Nos. 1-8 information in connection with any motion or hearing. Core Optical also seeks an Order striking Defendant's intentionally evasive current "response." X. Sanctions Core Optical respectfully submits that Defendant's meritless objections, patently evasive "responses," and refusal to timely participate in a Local Rule 37-1 pre-filing conference warrant the imposition of monetary sanctions, as well as the evidentiary sanctions requested above. See Fed.R.Civ.P. 37. With respect to monetary sanctions, Core Optical seeks the reasonable costs and attorneys' fees it has incurred (and will incur) in connection with the present motion (including the preparation of its Local Rule 37-1 letter). Core Optical will provide support for its requested fees and costs, if necessary, to the Court upon request. XI. Conclusion Core Optical's Motion to Compel Full and Complete Responses to its First Set of Interrogatories (Nos. 1-8) should be GRANTED in its entirety. Dated: January 20, 2018 Respectfully submitted, MANATT, PHELPS & PHILLIPS, LLP By: /s/ Lawrence R. LaPorte Lawrence R. LaPorte Attorneys for Plaintiff and Counterclaim-Defendant CORE OPTICAL TECHNOLOGIES, LLC Case 8:17-cv-00548-AG-JPR Document 30 Filed 01/20/18 Page 86 of 86 Page ID #:246