Federal Circuit Upholds Sanctions Against Litigation Counsel for Failure to Answer Contention Interrogatories

In a recent patent infringement suit filed by Rates Technology, Inc., against Mediatrix, the lead attorney for RTI unsuccessfully appealed discovery sanctions ordered against him after he failed to respond to contention interrogatories on behalf of RTI. The contention interrogatories asked Rates to describe its basis for its patent infringement claim against Mediatrix. The sanctions included an order for the attorney and for RTI to split almost $87,000 in attorneys’ fees between them.

The attorney claimed that he did not have sufficient information in his possession to answer the interrogatories and that he did not personally violate the discovery order. However, the Federal Circuit Court of Appeals disagreed and affirmed the award.

Court Rejects Argument that Counsel Lacked Sufficient Information to Respond

The attorney relied on multiple authorities that asserted attorneys may not be sanctioned for failing to produce evidence that was no within their possession. However, as Circuit Judge Bryson’s opinion points out, those cases involved fact interrogatories not contention interrogatories. These contention interrogatories “simply asked…for RTI’s theory of infringement.”

Further, even accepting the excuse that the “information [is] not within his possession” applies to contention interrogatories, the magistrate judge found that he did possess such information and yet “repeatedly and willfully failed to provide adequate responses.” Mediatrix produced thousands of pages of drawings and documents relating to the patent and such “substantial” discovery “enabled RTI ‘to make an element-by-element claim construction analysis’ which respect to [the contention interrogatories].” Therefore, the attorney possessed the relevant information.

Litigation Counsel of Record Can’t Shift Blame to Patent Counsel

The attorney tried to “shift the blame” for the omissions in production to RTI’s patent counsel. He claimed that “[a]s a business litigator, [he] was entitled to rely on the plaintiff’s patent counsel’s analysis.” However, because plaintiff’s patent counsel was not listed on the district court’s docket sheet, it was up to appellant to comply with the district court’s orders.  The attorney and RTI were responsible for the “egregious” conduct during the discovery process, which included failure to provide a theory of infringement after three years of litigation.