Summary:The court granted a motion to exclude late-produced spreadsheets, declarations, and documents related to testing and chain of custody in a patent infringement case between Feit Electric and SSC. The court found that the late production was not substantially justified and would cause prejudice to Feit Electric.
Court:United States District Court, C.D. California
Date decided:
Judge:Birotte Jr., Andre
Seoul Semiconductor Co., Ltd., et al. v. Feit Electric Co., Inc Case No.: 2:22-cv-5097-AB-SHK United States District Court, C.D. California Filed August 22, 2024 Counsel Ashwin J. Ram, Steptoe and Johnson LLP, Los Angeles, CA, Andrew S. Brown, Pro Hac Vice, Bryon T. Wasserman, David Radulescu, Pro Hac Vice, Etai Lahav, Pro Hac Vice, Jonathan Auerbach, Pro Hac Vice, Radulescu LLP, New York, NY, Guy Ruttenberg, Ruttenberg IP Law APC, Los Angeles, CA, Jennifer L. Jonak, Jonak Law Group, P.C., Eugene, OR, Kevin S. Kudlac, Pro Hac Vice, Radulescu LLP, Austin, TX, Michael Bradley Eisenberg, Stevens and Lee, New York, NY, for Seoul Semiconductor Co., Ltd. Ziyong Li, Gregory Carl Proctor, Pro Hac Vice, Hayk Snkhchyan, Benesch Friedlander Coplan and Aronoff LLP, San Francisco, CA, Douglas Quinton Hahn, Stradling Yocca Carlson and Rauth LLP, Newport Beach, CA, Kalpesh K. Shah, Pro Hac Vice, Simeon G. Papacostas, Theresa L. Starck, Benesch Friedlander Copland and Aronoff LLP, Chicago, IL, Salil Bali, Stradling Yocca Carlson and Rauth LLP, Newport Beach, CA, for Feit Electric Co., Inc. Birotte Jr., Andre, United States District Judge Proceedings: [In Chambers] Order Granting-In-Part Defendant's Motion to Strike Documents (Dkt. No. 245) I. Introduction *1 Before the Court is Defendant Feit Electric's Motion to Strike Late Produced Documents produced by Plaintiffs Seoul Semiconductor and Seoul Viosys (“SSC”). See Dkt. Nos. 245, 250 (Mot.); 251, 253 (Opp.); 258, 257-1 (Reply). The Court has conferred with the Special Master concerning this motion following the two-hour conference conducted with the parties on August 16, 2024; the Court deems this matter appropriate for decision without additional oral argument. The Court vacates the hearing previously scheduled for August 23, 2024. See Fed. R. Civ. P. 78; L.R. 7-15. For the reasons stated in this Order, the Court grants-in-part Defendant's motion. II. Background This case has been pending since July 2022. Fact discovery closed recently, and the claim construction process is underway. Although the Court set May 28, 2024 as the discovery cutoff, the Court “grant[ed] the parties the flexibility to complete already-issued discovery by June 21, 2024,” if such discovery had already been served but an action item was pending (e.g., logistical difficulties with scheduling foreign language depositions). Dkt. 208 at 5; see also Dkt. 231 (extending cutoff to July 12, 2024 to allow for specific depositions); Dkt. 239 (extending cutoff as to two remaining depositions, both to be concluded by July 23, 2024). The Court advised, however, that “[g]ranting the parties this flexibility [was] intended to allow the discovery process to conclude efficiently within the parameters of counsel and party availability; it should not be construed as an invitation to serve additional discovery at the last minute to get additional time.” Dkt. 208 at 5. After making the final adjustment for the remaining foreign language deposition, the Court ruled that “[n]o further extensions will be granted” for the fact discovery cutoff. Dkt. 239 at 2. After the May 28, 2024 cutoff, as the carve-out depositions were concluding and after consulting with the Special Master concerning a briefing schedule, Feit Electric filed a motion to strike late produced documents. See Dkts. 245, 250 (sealed). Through its motion, Feit Electric seeks to strike three categories of documents it contends were untimely produced: (1) two spreadsheets concerning SSC's testing of accused products, which relate to authenticity and chain of custody; (2) declarations relating to authenticity of those spreadsheets; and (3) 13,000 other documents (i.e., 150,000 pages) (the “June Production”)). The throughline of these categories is SSC's acquisition and testing of accused products in support of its infringement contentions. SSC conducted highly technical teardowns of the accused products and used specialized testing equipment to support infringement; Feit Electric sought and received discovery relating to this testing. After reviewing the testing materials produced by SSC, Feit Electric believed that SSC failed to link photographs, x-rays, microscopic images, raw data files, and APT test results with specific accused products. Therefore, Feit Electric sought additional testing-related discovery concerning chain of custody and authenticity to test the veracity of the test results. Mot. at 2-3. For example, Feit Electric requested, “All Documents relating to any analysis You have performed or caused to be performed on the Accused Products ...,” Dkt. 245-3 at 3-4, and “records created to track the acquisition, de-construction, examination, testing, storage, handling, movement, etc., of the Accused Products by You or on Your Behalf.” Dkt. 245-4 at 1. Relatedly, during a discovery meet and confer, Feit Electric asked whether SSC had “tracking sheets” showing who performed what tests on which products. Dkt. 245 ¶ 2. *2 Despite these and other similar requests, Feit Electric states that the challenged documents were not produced “until after the deposition of Mr. Woo Hyoung Yi, the key fact witness Plaintiffs identified as ‘the person responsible for the custody of the Accused Products in Plaintiffs' possession, including from their purchase in the United States and/or shipping to Plaintiffs in Seoul, Korea ... and the current state and storage of the Accused Products.’ ” Mot. at 1. Although Feit Electric asked for a second deposition of Mr. Yi, SSC responded that he was no longer an employee and would be available shortly before trial if SSC decides to call him.[1] Id. at 15. Instead, SSC offered a different witness, Ms. Borami Jang, but Feit Electric argues she was unprepared for her deposition and could not answer questions about the challenged documents. Id. at 16. Thus, Feit Electric moves to strike them. SSC responds that the challenged production happened “during the first of the[ ] [deposition-related] extensions” granted by the Court, “and before the majority of these depositions.” Opp. at 5. Further, SSC avers that, “for those depositions Feit took before the subject production, SSC has offered to re-produce the witnesses.” Id. SSC notes that, in view of the Court's case narrowing order and ruling on Feit Electric's motions to strike concerning representativeness, “a significant portion of the disputed production relates to the set of 214 at-one-time accused products” that are no longer in the case. Id. at 6. SSC notes that, around April 2023, it produced “testing/analysis and image files for each of the approximately 150 specifically charted products, which include the 51 remaining, currently accused products.” Id. at 7. SSC also produced more testing-related information in connection with its amended infringement contentions. Id. Following SSC's Notice of Reduction, it produced more testing information, including data relating to the currently accused 51 products. Id. at 8. As to the June Production, SSC avers that it conducted a “final sweep” relating to authentication, with the help of an e-discovery vendor, leading to production of the documents, on June 3, 2024. Id. SSC states that “substantially all” of this “final sweep” production was duplicative to prior productions. Id. at 9. SSC acknowledges that “[t]here are a small number of test/analysis documents/files that were produced for the first time in the June production,” which “relate to screen capture images from a computer system employed by SSC to request and track product tests and analyses.” Id. at 10 n.4 (citing Dkt. 253, Kudlac Decl. ¶64 (sealed)). As to the spreadsheets, SSC explains that, before Mr. Yi's deposition, “these documents were treated as attorney work product and exempt for production.” Id. at 11 (citing Kudlac Decl. ¶ 66). Since “Mr. Yi prepared for his deposition with SSC's in-house counsel,” “SSC's outside counsel was unaware that these two documents had been used in that preparation,” but due to the disclosure, SSC later produced them to Feit Electric. Id. at 11 (citing Kudlac Decl. ¶ 67). SSC confirms that it has offered to make Mr. Yi available again before trial, and in the meantime, it provided an alternative 30(b)(6) witness (i.e., Ms. Jang). Id. In any event, SSC argues that Feit Electric's motion is a premature motion in limine because it is unknown which of the challenged documents will be used to support expert disclosures and the reduced set of claims remaining for trial. Id. at 13-14. SSC also argues no prejudice flows from producing authentication documents. Id. at 14-15. SSC contends the timing of the productions was substantially justified due to ongoing meet and confers; and it was harmless because Feit Electric has long known of the testing, and SSC has offered additional depositions where needed. Id. at 16-18. III. Legal Standards *3 The Federal Rules of Civil Procedure allow parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Once discovery begins, “Rule 26(e)(1) of the Federal Rules of Civil Procedure requires all parties to supplement or correct, among other things, responses to discovery requests ‘in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.’ ” Jones v. Travelers Cas. Ins. Co. of Am., 304 F.R.D. 677, 678–79 (N.D. Cal. 2015) (quoting Fed. R. Civ. P. 26(e)(1)(A)). “The parties are expected to supplement and/or correct their disclosures promptly when required under that Rule, without the need for a request from opposing counsel or an order from the Court.” Id. “Rule 37 mandates that a party's failure to comply with the obligations under Rule 26(e)(1) results in that party being precluded from ‘use [of] that information ... to supply evidence on a motion, at a hearing or at trial, unless the failure was substantially justified or is harmless.’ ” Id. (quoting Fed. R. Civ. P. 37(c)(1)). “Rule 37(c)(1) is ‘self-executing’ and ‘automatic.’ ” Id. (quoting Yeti by Molly Ltd v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001)). The party facing sanctions, or the non-disclosing party, bears the burden of proving substantial justification or harmlessness. 259 F.3d at 1107. “ In determining whether to preclude introduction of evidence pursuant to Federal Rule of Civil Procedure 37, courts consider (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party's explanation for it failure to disclose the evidence.” Dey, L.P. v. Ivax Pharms., Inc., 233 F.R.D. 567, 571 (C.D. Cal. 2005). Although appellate courts “review every discovery sanction for an abuse of discretion,” those courts “give particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1).” 259 F.3d at 1106; see also Hoffman v. Constr. Prot. Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (affirming district court's order excluding undisclosed damages evidence). IV. Discussion A. Timing of Motion Before addressing the merits of Feit Electric's motion, the Court considers whether the motion is premature, and relatedly whether it would be a better use of Court and party resources to consider these issues now, or in the context of dispostive motions or trial. SSC argues that motions to strike under Rule 37(c) are typically filed in connection with summary judgment or trial proceedings, e.g., in response to a party relying on a document that the moving party contends was produced late. Further, SSC argues that prejudice should not be evaluated until that time because it will become clear what patents and claims remain in the case, and whether and how SSC will rely on any of the challenged documents. SSC also argues that deferring the motion is appropriate because Feit Electric will have many opportunities to cure any alleged prejudice. See Opp. at 13-16. The Court is unaware of any authority, and SSC cites none, that motions to strike under Rule 37 should be filed only after a party seeks to rely on a document that was untimely produced (e.g., by attaching it to a motion or listing it as an exhibit for trial). Although such motions may be common at the summary judgment stage or pretrial, nothing in the rule precludes a party from moving to strike when it becomes aware of an untimely production. Doing so is not uncommon. *4 For example, in Munchkin, Inc. v. Luv N' Care, Ltd., No. 2:13-CV-07228-ODW, 2015 WL 774065, at *1 (C.D. Cal. Feb. 24, 2015), the Court set December 1 as the discovery cutoff. From November 25 through the following January 14, the defendant produced a variety of documents, disclosed new witnesses and declarations from those witnesses, and updated discovery responses. Id. On January 5, the plaintiff moved under Rule 37(c) to exclude the untimely productions and disclosures. The Court considered and granted the motion, including as to the documents produced shortly before the discovery cutoff because this left plaintiff no time to investigate. See id. at 2 (“Disclosing so late still left Plaintiff no ability to investigate the disclosed documents by deposing witnesses or by other means of discovery.”). Other similar examples include motions to strike when new witnesses and new expert-related factual disclosures were made after the close of fact discovery. See, e.g., Finjan, Inc. Proofpoint, Inc., No. 313CV05808HSGHRL, 2015 WL 9900617, at *3 (N.D. Cal. Oct. 26, 2015) (granting discovery motion to strike under Rule 37 based on defendants' belated witness disclosure, which was “served before the fact discovery cutoff–––but only just [before],” where defendants knew about the witnesses from several months to a year before the discovery cutoff); Masimo Corp. v. Apple Inc., No. SA CV 2:000048-JVS-JDEx, 2022 WL 18285029, at *7 (C.D. Cal. Nov. 22, 2022) (granting motion to strike as to factual disclosures that should have been made earlier where “[i]Insufficient time remains in expert discovery to allow for compliant written reports, follow-up fact discovery, full depositions concerning new factual and expert disclosures, selecting rebuttal witnesses, and providing reciprocal disclosures”). Fact discovery has closed, and as previously ordered, no further extensions will be granted. This scenario does not present opportunities to cure prejudice. Therefore, the Court will consider the motion to strike untimely produced documents on its merits now. The Court finds that considering the motion now will lead to a more efficient use of Court and party resources because the scope of the case will be known through expert discovery and dispositive motion practice. This will allow the parties to focus on matters that are within the case when completing expert discovery and preparing dispositive motions. B. Documents Produced Having determined it is appropriate to consider the merits of the motion now, the Court considers the motion in the context of each of the three challenged categories of documents. 1. Spreadsheets SSC produced the spreadsheets on May 22, 2024, shortly before the May 28, 2024 fact discovery cutoff. Although the spreadsheets were produced before the final deadline, they were not timely produced in connection with (1) Feit Electric's requests for discovery concerning the chain of custody of, and substance surrounding, product testing, and (2) the relevant 30(b)(6) deposition on May 1, 2024. It is undisputed that Feit Electric sought discovery relating to SSC's product testing chain of custody and SSC produced some responsive documents. Other responsive documents were discussed during ongoing meet and confer sessions. As relevant to the spreadsheets, in December 2023, Feit Electric's counsel asked about the existence of tracking sheets “showing which individuals performed which tests on which accused product samples, and when.” Dkt. 245 ¶ 2. The metadata on the spreadsheets shows that they were created during the relevant discovery period; the “Master Sheet” was created on November 16, 2023, and the “Tracking List” was created on January 8, 2023. See Mot. at 13-14. Thus, at a minimum Rule 26(e)(1) required SSC to supplement its production when it created and relied on the spreadsheets to support infringement, but at the latest in time for Feit Electric to use them to question SSC's designated witness. See, e.g., Voyager Indem. Ins. Co. v. Zalman N., Inc., 668 F. Supp. 3d 990, 998 (C.D. Cal. 2023) (disclosure of contract two weeks before discovery cutoff deprived party of opportunity to conduct discovery); see also Munchkin, Inc., 2015 WL 774065, at *2 (“Disclosing so late [right before the discovery cutoff] still left Plaintiff no ability to investigate the disclosed documents by deposing witnesses or by other means of discovery.”); Finjan, Inc., 2015 WL 9900617, at *3 (where “fact discovery deadline was extended for the limited purpose of allowing the parties to complete certain discovery that was already underway,” “it was not reasonable to expect plaintiff to divert time and resources to prepare for and take the depositions of [new witnesses] who were disclosed at the eleventh hour”). *5 Because they were not produced timely, the Court analyzes whether the automatic sanction of Rule 37 should apply. That sanction is not applicable if SSC can show that late production was substantially justified or harmless. Substantial Justification SSC states that the tracking sheets were not produced because they were treated as attorney work product until Mr. Yi discussed them at his deposition. Dkt. 253 ¶ 66. SSC's opposition does not provide analysis concerning whether the documents were properly deemed privileged. Neither party addresses whether any contemporaneous records support work product protection. For example, if the spreadsheets were attached to any emails, were such emails placed on a privilege log? Were the documents stored in a way suggesting they were privileged (e.g., limited access location, password protection)? Although not determinative, the Court notes the documents are not marked privileged. Where the spreadsheets track which products were tested when, and do not contain attorney comments about the substance of the testing, they do not appear to be privileged on their face. On this record, the Court has no basis to conclude that the spreadsheets were privileged such that SSC was substantially justified in withholding them.[2] Prejudice SSC has not demonstrated a lack of prejudice to Feit Electric arising from untimely production of the spreadsheets. SSC argues that it offered to make Mr. Yi available for a subsequent deposition near trial, but only if SSC elects to call him at trial.[3] SSC also argues that it provided a second 30(b)(6) witness, Ms. Jang, to discuss the spreadsheets. The Court finds that SSC has not carried its burden to show lack of prejudice. Providing Mr. Yi, who is no longer an employee, shortly before trial or other unknown time is too late. Discovery is closed. The proposed timeline would not allow Feit Electric an opportunity to rebut information gleaned from the spreadsheets, or from Mr. Yi's explanation of and SSC's reliance on the spreadsheets. This is especially true where SSC's offer is contingent upon SSC's decision to call Mr. Yi as a witness. Feit Electric is entitled to explore the substance and authenticity of SSC's testing, whether SSC elects to call Mr. Yi. Further, SSC's presentation of Ms. Jang as an ameliorative witness to address the untimely produced spreadsheets did not cure the prejudice because she was unprepared her for her deposition and unable to answer questions about the spreadsheets. See Dkt. 250-19, Ex. 45 (Rough Tr. at 53:19-60:7). Relevant Factors In analyzing substantial justification and prejudice, the Court considers other relevant factors. First, considering Feit Electric's requests for this type of information, SSC's production of some of the information, and SSC's representations that all relevant documents had been produced, the belated production results in surprise to Feit Electric, the party against whom the evidence would be offered. Second, because fact discovery has closed, there is no ability for Feit Electric to cure that surprise. This is especially true in the context of SSC's ameliorative proposals: to wait to potentially have an opportunity to explore the issue with Mr. Yi; or accept another witness of unknown knowledge and preparation levels. *6 Third, allowing this evidence would disrupt the forthcoming trial setting in this case because it would require reopening fact discovery and extending any expert, summary judgment, and trial-related deadlines that will be set at the September 13, 2024 hearing. Although those deadlines have not been set, allowing for more discovery would disrupt the otherwise orderly schedule envisioned by the Court's case narrowing and scheduling order. See Dkt. 208. Because the case is already two years old and just now reaching the Markman and expert discovery stages, extending fact discovery would further disrupt the just, speedy, and inexpensive determination of this action. Fed. R. Civ. P. 1. Fourth, SSC does not explain the importance of the spreadsheets to its case. See Opp. at 21 (discussing importance of June Production, not spreadsheets). Because SSC avers its belief that the spreadsheets were work product privilege, the Court assumes SSC never intended to introduce them as evidence. Thus, the spreadsheets are not important to proving infringement. Fifth, the Court already discussed SSC's explanation for its failure to disclose the spreadsheets and incorporates that discussion here. The Court has expressed concerns numerous times about delays in this two-year-old case, and it cautioned previously that no further discovery extensions would be granted. In view of the belated disclosure of the spreadsheets, and SSC's failure to demonstrate substantial justification for their withholding or lack of prejudice flowing therefrom, the Court grants Feit Electric's motion as to the spreadsheets. 2. 2024 Declarations On May 31, 2024, SSC produced eleven declarations relating to chain of custody underlying the accused products testing. The declarations were signed May 24, 2024, i.e., a few weeks after Mr. Yi's deposition during which he was asked about testing. See Dkt. 250-13 (Ex. 35). SSC argues these declarations are not “late” because “they have been produced before expert disclosures and discovery and before any pretrial disclosures have even been scheduled,” and have been disclosed more than 30 days before the final pretrial conference. Opp. at 17. The Court finds that the declarations were produced late because, even setting aside the fact that they were created shortly before and produced shortly after the fact discovery cutoff, they were created after the relevant testing/chain of custody fact witness deposition. These circumstances prevent Feit Electric from having a meaningful opportunity to conduct further discovery on the factual statements made in the declarations. Because they were not produced timely, the Court analyzes whether the automatic sanction of Rule 37 should apply. That sanction is not applicable if SSC can show that late production was substantially justified or harmless. Substantial Justification SSC does not present an argument that late creation and production of the eleven declarations was substantially justified. Thus, the Court does not reach this prong. Prejudice Even if produced late, SSC argues the timing is harmless because declarations that authenticate documents about which the receiving party was already aware are not prejudicial. Opp. at 17 (citing Beauperthuy v. 24 Hour Fitness USA, Inc., 772 F. Supp. 2d 1111, 1117, 1120 (N.D. Cal. 2011)). SSC avers that Feit Electric knew of the existence of the testing and analysis documents and already had most of them. Id. at 18. As with the spreadsheets, the Court finds that SSC has not demonstrated a lack of prejudice arising from the eleven declarations. The fact that the declarations were drafted and signed after the relevant testing/chain of custody deposition suggests they were intended to supply additional information to bolster SSC's testing procedures and/or results, or they were intended to rebut unfavorable information that arose during the deposition. With discovery closed, Feit Electric has no opportunity to test the veracity of or respond to the new information.[4] Relevant Factors *7 In analyzing substantial justification and prejudice, the Court considers other relevant factors. First, considering Feit Electric's requests for testing information, including authenticating and chain of custody information, the belated production results in surprise to Feit Electric, the party against whom the evidence would be offered. This is especially true where the declarations were created after the relevant testing/chain of custody deposition. Second, because fact discovery has closed, there is no ability for Feit Electric to cure that surprise. This is especially true in the context of SSC's proposed ameliorative deposition at which Ms. Jang could not answer questions about the declarations. Third, the Court incorporates its discussion above concerning the extent to which allowing the evidence would disrupt trial. Fourth, SSC does not explain the importance of the eleven declarations to its case. See Opp. at 21 (discussing importance of June Production, not newly created declarations). Fifth, SSC does not provide an explanation for creating additional declarations after the close of discovery and after the relevant deposition. In view of the belated creation and disclosure of the eleven declarations, and SSC's failure to demonstrate substantial justification for these circumstances or lack of prejudice flowing therefrom, the Court grants Feit Electric's motion as to the eleven new declarations. 3. June Production On June 5, 2025, SSC served on Feit Electric 13,085 additional documents spanning over 150,000 pages. According to Feit Electric, the production includes about 23,300 testing/chain of custody-related documents, as well as 19 additional declarations relating to chain of custody. See Mot. at 14; Dkt. 250-14, Ex. 37 (example declaration). Unlike the declarations discussed above, this batch of declarations bears signatures dated in 2022 and 2023. SSC argues that “substantially all” of the documents in the June Production were produced previously. Opp. at 9. Further, SSC notes that most of these files are no longer relevant because they relate to 163 products that are no longer in the case. Id. For the 51 remaining products, SSC avers that the relevant documents were “re-produced in conjunction with the authentication declarations to allow for clearer correlation between the declarations and the files described therein.” Id. at 10 (citing Kudlac Decl. ¶ 64). The Court finds that the June Production can be separated into three batches of documents. First, the June Production includes documents relating to products other than the 51 accused products remaining in the case. Feit Electric's motion appears to be moot as to these documents because infringement is no longer asserted for those products.[5] At the conference with the Special Master, SSC stated that this production was underway before the now irrelevant documents could be culled. SSC also stated that it can provide a list of Bates ranges to Feit Electric so Feit Electric can quickly identify the non-relevant documents on which SSC agreed it does not intend to rely given the case narrowing order. Accordingly, in the interest of efficiency, the Court ORDERS SSC to provide a list of Bates ranges for documents in the June Production relating to products other than the 51 accused products. SSC shall provide this list within 14 days of receipt of this Order. This clarification from SSC will render this portion of the motion moot. *8 Second, the June Production includes re-produced documents relating to the 51 accused products remaining in the case, i.e., they are duplicates. SSC states that duplicates were provided to link specific documents to their corresponding authenticating declarations. At the conference with the Special Master, Feit Electric stated that the June Production contains insufficient metadata to identify duplicates. SSC stated that it could quickly identify the duplicates based on metadata. In the interest of efficiency, the Court ORDERS SSC to provide a list of Bates ranges for documents in the June Production that are duplicative of documents previously produced, along with cross-reference Bates numbers to the original production Bates numbers. SSC shall provide this list within 14 days of receipt of this Order. This clarification from SSC will render this portion of the motion moot. Third, the June Production includes newly produced documents, including testing and authentication documents relating to the 51 accused products that were produced for the first time on June 5, 2024, including 19 declarations. The Court finds that this subset of documents was produced late, including documents relating to Mr. Jwa Young Kim produced after his deposition. These circumstances prevent Feit Electric from having a meaningful opportunity to conduct further discovery on the factual statements contained in the documents and made in the declarations. Because this subset of documents was not produced timely, the Court analyzes whether the automatic sanction of Rule 37 should apply. That sanction is not applicable if SSC can show that late production was substantially justified or harmless. Substantial Justification SSC argues that the timing of this subset of the June Production was substantially justified because the production occurred only after a lengthy meet and confer process relating to SSC's discovery objections. Opp. at 21. As stated, the Federal Rules allow a party to seek discovery of relevant information proportional to the needs of the case. Testing accused products is relevant to infringement and defenses thereto. The objection(s) on which SSC relies, and the outcome of any resulting litigation or compromise is unclear.[6] Feit Electric long sought testing/chain of custody/authentication documents, and SSC produced some responsive documents throughout the lengthy discovery period in this case. Separately, SSC avers that the June Production resulted from a “final sweep” and thorough process of working with an e-discovery vendor. Although thorough document gathering, review, and production fulfills the spirit of Rule 26, SSC has not provided a substantial justification concerning the timing of these efforts. On this record SSC has not shown that the belated timing of the June Production was substantially justified. Prejudice Feit Electric identifies 19 declarations disclosed in the June Production. As with the 2024 declarations, SSC argues that, even if the 2022-2023 declarations in the June Production are deemed untimely, the timing is harmless because declarations that authenticate documents about which the receiving party was already aware are not prejudicial. Opp. at 17. The Court finds that SSC has not demonstrated a lack of prejudice arising from these declarations. This is especially true where this batch of declarations were signed in 2022 and 2023, contemporaneous with earlier document productions. With discovery closed, Feit Electric has no opportunity to test the veracity of or respond to the new information in these documents.[7] *9 Feit Electric also identifies generally other testing/authentication/chain of custody documents falling within this subset of documents. They were produced after the relevant fact witness deposition such that Feit Electric could not question Mr. Kim about them. Further, Mr. Kim apparently was unavailable for a second, ameliorative deposition on a day when counsel was not already taking other depositions within the limited revised deposition cutoff. As stated, the Court allowed for flexibility to complete already-served discovery, like noticed depositions, but this flexibility was not intended to permit a document dump after the close of fact discovery. See Dkt. 208 at 5. Relevant Factors In analyzing substantial justification and prejudice, the Court considers other relevant factors. First, considering Feit Electric's requests for testing information, including authentication and chain of custody information, the belated production of this subset of the June Production results in surprise to Feit Electric, the party against whom the evidence would be offered. Second, because fact discovery has closed, there is no ability for Feit Electric to cure that surprise. This is especially true in the context of SSC's proposed ameliorative depositions when Mr. Kim was apparently not available during the extended deposition period, and Ms. Jang could not answer questions about the declarations. Third, the Court incorporates its discussion above concerning the extent to which allowing the evidence would disrupt trial. Fourth, SSC argues that these documents are important to help it prove authenticity of previously produced documents because Feit Electric will challenge authenticity and reliability. Opp. at 21. That may be true, but if SSC had information from 2022-2023 to support authenticity and reliability of its testing, it was required to produce that information to Feit Electric with time to explore it during (not after) discovery. It would be unfair to run the clock on discovery and serve documents seeking to rebut challenges raised during discovery only after the close of discovery. Fifth, SSC relies on its discovery objections and ongoing meet and confer process as explanations for the delay. Opp. at 21-22. It is unclear to the Court what objection(s) and meet and confer(s) relate to withholding authenticating documents such as the 2022-2023 declarations, or why this would support withholding testing-related documents until after the relevant deposition was completed. In view of the belated disclosure of this subset of the June Production, and SSC's failure to demonstrate substantial justification for these circumstances or lack of prejudice flowing therefrom, the Court GRANTS Feit Electric's motion as to this subset of documents. V. Conclusion For the foregoing reasons, the Court rules on Feit Electric's Motion to Strike as follows: • The Motion is GRANTED as to the spreadsheets; • The Motion is GRANTED as to the new 2024 declarations; • The Motion is MOOT as to documents within the June Production relating to no-longer-accused products and duplicate documents; the Motion is GRANTED as to newly produced documents relating to accused products in the June Production, including the 2022-2023 declarations. • SSC is ORDERED to produce to Feit Electric within 14 days of receipt of this Order Bates ranges as identified on p. 13. IT IS SO ORDERED. Footnotes [1] At the conference with the Special Master, SSC stated that Mr. Yi might be available sooner for a deposition in South Korea, but arranging the deposition would be subject to availability based on his new employment. [2] The Court makes no finding about the nature of SSC's representation that the spreadsheets were privileged. For purposes of this analysis, the Court assumes that SSC mistakenly believed the sheets were work product privileged. [3] As stated, SSC averred at the conference with the Special Master that and is working to see if he will be available sooner given his obligations to his new employer. [4] To the extent SSC can show that specific averments contained in the newly created declaration function only to authenticate information timely served during discovery (e.g., authenticity of a photograph of an accused product where that photograph was previously timely served during discovery), the carveout for authenticating-only testimony of a known document may apply. A brief review of the exemplar declarations suggests, however, that they contain substantive factual statements over and above mere authentication. Because the list of accused products will be further narrowed throughout this case, it is unknown which statements and declarations SSC may wish to rely on throughout this litigation and whether they fall under this carveout. The Court declines to reach this hypothetical question unless and until a specific question is presented. If any dispute arises concerning whether a statement in one of the newly created declarations is merely authenticating, the parties shall meet and confer and are strongly urged to work to reach agreement on this point. The Court believes that if the parties work collaboratively they can delineate between substantive and authenticating statements. [5] The Court reiterates that the case narrowing procedures adopted in this case are “without prejudice to Plaintiffs preserving the right to raise non-duplicative patents and claims.” Dkt. 208 at 4 (citing In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1313 (Fed. Cir. 2011)). That is, if a non-relevant documents from the June Production relate to a later raised non-duplicative patent claim properly considered under Katz, they may no longer be moot. That question is not before the Court now. [6] Elsewhere, SSC references proportionality objections relating to documents from other litigations, marketing documents, and infringement notices. Opp. at 19-20. It is not clear whether those objections were overruled, or SSC decided to waive them near the end of discovery. The Court understands Feit Electric's motion to be about prejudice flowing from withholding of testing/chain of custody/authentication documents, so SSC's objections to other categories of documents may not be relevant to late production of testing/chain of custody/authentication documents. [7] Footnote 4 concerning mere authentication of previously disclosed documents applies to these declarations as well.