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Kodak Graphic Communications Canada Company, As Successor To Creo Inc v. E. I. Du Pont De Nemours and Company

February 8, 2012


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge


Plaintiff Kodak Graphic Communications Canada Company ("KGCC"), as successor to Creo, Inc., has filed this action seeking (i) a declaratory judgment that defendant E. I. du Pont de Nemours and Co. ("DuPont") breached its contract with KGCC and (ii) damages as a result of the breach. (Docket # 1). Currently pending before this Court is defendant's motion to compel KGCC to produce documents in response to two contention interrogatories. (Docket # 78). The following constitutes this Court's decision and order on the motion.


In 2002, DuPont and KGCC (then Creo) entered into a written agreement for the development of color filters for flat screen televisions and computer monitors (the "Agreement"). On December 8, 2008, KGCC filed the instant action, seeking damages and a declaratory judgment that DuPont had breached the Agreement and KGCC had not. (Docket # 1).*fn1

Specifically, the Complaint asserts that DuPont terminated the agreement for "its own convenience" and not because of any breach or default by KGCC. (Id. at ¶ 55; see also ¶ 3). DuPont filed an Answer and Counterclaim on May 13, 2009, which seeks a declaratory judgment that DuPont terminated the Agreement for cause and is entitled to damages as a result of KGCC's breach. (Docket # 9 at ¶¶ 46-66). In its Answer to Counterclaim, KGCC asserted various affirmative defenses, such as, failure to mitigate damages, waiver, estoppel, unclean hands and commercial impracticability. (Docket # 13).

Currently pending before this Court is DuPont's motion to compel KGCC to respond to those portions of two contention interrogatories demanding the identification of certain documents. (Docket # 78). The relevant background concerning the dispute is the following.

DuPont served KGCC with a notice of deposition under Rule 30(b)(6) of the Federal Rules of Civil Procedure that sought KGCC to designate a witness or witnesses to testify on its behalf concerning eleven specified topics. (Docket # 78-2, Exhibit ("Ex.") 1). KGCC objected to designating a witness for certain of the topics, two of which were Topic Nos. 2 and 11. (Id. at Ex. 2). Following discussion over the objections, the parties agreed that KGCC would respond to Topic Nos. 2 and 11 of the 30(b)(6) notice as contention interrogatories. (See Docket # 83 at 1). The parties reached no agreement, however, on the identification of documents sought in the requests.

Topic No. 2 requests KGCC respond to:

What KGCC contends DuPont's reasons were for terminating the June 3, 2002 Agreement, the 9th Revision dated October 22, 2007, and/or the Memorandum of Understanding dated October 29, 2007.

The complete basis and support for each of KGCC's contentions with respect to each reason, and any documents that KGCC claims supports [sic] its contentions as to each reason. (Docket # 78-2, Ex. 1 (emphasis added)). Topic No. 2 is substantially similar to a previous interrogatory to which KGCC responded. (Docket # 83-1, Ex. B at 13-15). Specifically, Interrogatory No. 9 of DuPont's First Set of Interrogatories asked KGCC to:

Identify each and every basis for [y]our contention that DuPont terminated the Marketing and Purchase Agreement for reasons other than a default by [KGCC] or breach of a material term by KGCC, and identify each witness and the specific documents, if any, that you contend support your contention. (Docket # 83-1, Ex. B. at 13). KGCC answered, "DuPont sought to terminate the [Agreement] for its own convenience for one or more of the following reasons" and identified six reasons ranging from "the downturn in the flat panel display market that occurred in 2008" to "DuPont was unable to formulate, design and manufacture film to meet CPT's*fn2 specifications." (Docket # 83-1, Ex. B at 14-15). KGCC concluded its answer with the representation that "KGCC expects that these points will be substantiated by discovery, which is ongoing, and that after discovery, it will be able to identify which witness[es] and documents support these contentions." (Id. at 15).

Topic No. 11 of the 30(b)(6) notice requests KGCC provide: The entire basis for each of the affirmative defenses KGCC has asserted in response to DuPont's counterclaims, and any documents that KGCC claims supports [sic] any of its contentions on each such affirmative defense. (Docket # 78-2, Ex. 1 (emphasis added)).

As noted above, KGCC agreed to respond to both Topic Nos. 2 and 11 as contention interrogatories by providing the factual bases for its contentions, but objected to identifying all documents that support those contentions on the grounds that doing so would reveal attorney work product. According to KGCC, all the requested documents have already been produced in discovery, and many of them were in fact created by DuPont. (Docket # 83 at 1, 10). KGCC contends that compliance with this request would reveal to DuPont the documents that KGCC's counsel has selected and compiled -- from a much larger group of documents that DuPont already has produced -- to support its theories why DuPont terminated the Agreement. KGCC further maintains that compliance would be unduly burdensome because it would require KGCC to review the approximately 600,000 pages of documents produced in discovery, an undertaking that KGCC's counsel estimates would involve approximately 800 attorney hours. (Docket # 83-1 at ¶ 4).

At oral argument, the parties reached an agreement to resolve the dispute concerning Topic No. 11. (Docket # 90 at 21-22). KGCC agreed to respond in writing to Topic No. 11 by identifying the facts that support its affirmative defenses. (Id. at 24). With respect to the request for supporting documents, KGCC agreed to identify the documents upon which it relied at the time it asserted its affirmative defenses in its answer. (Id.). DuPont agreed to this compromise on the condition that it would not be precluded from seeking further judicial relief following the document identification ...

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