The District of Delaware supports contention interrogatories generally (but not contention 30(b)(6) topics). I remember that, back before the Court adopted the Default Standard in 2011, contention interrogatories were the main way to define and limit the scope of the case during fact discovery.
But contention interrogatories are not without limits. On Friday, in LeFebvre v. Extrabux, Inc., C.A. No. 23-167 (D. Del.), Judge Burke issued a decision on a discovery dispute about a contention interrogatory seeking claim construction positions. He held that a party can't just ask the opposing party for its claim constructions of all limitations:
ORAL ORDER: The Court . . . hereby ORDERS as follows regarding Defendant's disputes: (1) With regard to Defendant's Issue No. 1, in which it requests that Plaintiff be required to respond to Defendant's Interrogatory ("ROG") No. 6 (wherein Defendant requests that Plaintiff identify, inter alia, the "construction of each claim limitation [Plaintiff] applied" in preparing infringement contentions (such as those used in a pre-suit notice letter, in the Complaint and in contentions Plaintiff submitted in February 2024), (D.I. 63 , ex. A at 10), the request is DENIED.
LeFebvre v. Extrabux, Inc., C.A. No. 23-167, D.I. 100 (D. Del. Aug. 26, 2024).
The Court did not hold that a claim construction contention interrogatory was necessarily invalid just because the scheduling order sets out a process for disclosing terms and constructions:
The Court agrees with Defendant that . . . claim construction positions [used in preparing infringement contentions] can be relevant to the claims and defenses in the case. And it is not sure that it agrees with Plaintiff that such a request can never be appropriate simply because the Scheduling Order also includes a process for the exchange of disputed claim terms, leading to Markman briefing. . . . There might be some scenarios where an early, targeted ROG asking for a party's claim construction position on a particular term or terms, well in advance of the Markman process, could make sense from a Fed. R. Civ. P. 26 perspective. . . . If there is some more targeted claim construction position (e.g., as to one or two particular claim terms) that Plaintiff took in the past that Defendant thinks is particularly important, then Defendant can discuss narrowing the focus of the ROG with Plaintiff, and if Plaintiff does not agree to respond to that narrowed focus, Defendant can take the issue up with the Court in the future.
Instead, the Court found it overbroad because it asked for all constructions, including ones that are likely to be undisputed or irrelevant:
For now, the Court will deny the request simply because the ROG, as written, is certainly unduly overbroad and burdensome. It literally asks for Plaintiff's position on the meaning of every single word in every single claim limitation in every single claim at issue in the prior contentions (along with supporting intrinsic evidence). Since there is no way that all such claim term "constructions" could possibly be the subject of real, live disputes in this case relating to infringement or validity, the Court is not going to make Plaintiff respond to the ROG as written.
If the Court had held otherwise, this would could have become a standard interrogatory in every case.
In the same oral order, the Court granted a motion to compel a response to a contention interrogatory about the level of skill in the art—and knocked plaintiff for waiting so long to respond:
With regard to Defendant's Issue No. 2, in which it requests that Plaintiff be required to substantively respond to Defendant's ROG No. 8 (which asks Plaintiff to provide its view as to who is a person of ordinary skill in the art ("POSITA") as it relates to this action, along with other POSITA-related information), . . . the request is GRANTED. The information is relevant to this case, and not just to the claim construction process (as Plaintiff seems to suggest), . . . but to lots of potential liability issues . . . . This ROG should have been answered long ago. Plaintiff will further supplement its response to the ROG by no later than 10 days from today's date, absent further order of the Court to the contrary.
Obviously, the burden to respond regarding a single level of ordinary skill per patent is much lower than defining every single term used in the asserted claims.
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