Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 1 of 22
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`In the United States Court of Federal Claims
`
`
`
`SCIENCE APPLICATIONS
`INTERNATIONAL CORP.,
`
`
`Plaintiff,
`
`
` v.
`
`THE UNITED STATES,
`
`
`
`
`
`
`
`Defendant,
`
`and
`
`MICROSOFT CORPORATION,
`
` Intervenor-Defendant,
`
` and
`
`L3 TECHNOLOGIES, INC.,
`
` Third-Party Defendant.
`
`No. 17-cv-825
`
`Filed Under Seal: September 8, 2022
`
`Publication: September 15, 20221
`
`
`
`Gwendolyn Tawresey, Troutman Pepper Hamilton Sanders LLP, Washington, District of
`Columbia for Plaintiff. With her on the briefs is William D. Belanger, Troutman Pepper Hamilton
`Sanders LLP, Washington, District of Columbia.
`
`Thomas L. Halkowski, Fish & Richardson P.C., Washington, District of Columbia for Intervenor-
`Defendant. With him on the briefs are Ahmed J. Davis, and Kenton W. Freeman, Jr., Fish &
`Richardson P.C., Washington, District of Columbia.
`
`
`
`
`
`
`1 This Memorandum and Order was filed under seal in accordance with the Protective Order
`entered in this case (ECF No. 34) and was publicly reissued after incorporating all redactions
`proposed by the parties. (ECF No. 317.) The sealed and public versions of this Memorandum and
`Order are identical, except for the addition of the publication date and this footnote.
`
`

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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 2 of 22
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`MEMORANDUM AND ORDER
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`Plaintiff Science Applications International Corporation (Plaintiff or SAIC) accuses
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`Defendant the United States (Government or Defendant) of infringing Plaintiff’s patent, which
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`relates to heads-up displays, “by entering into contracts with Plaintiff's competitors for the
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`manufacture and subsequent use of night vision goggle weapon systems with specialized heads up
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`displays that allegedly use Plaintiff's patented technology.” Sci. Applications Int'l Corp. v. United
`
`States, 148 Fed. Cl. 268, 269 (2020); see also Complaint (ECF No. 1) (Compl.) ¶¶ 2, 37.
`
`Intervenor-Defendant Microsoft Corporation (Microsoft) is a contractor that provides such
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`products to the Government. See Microsoft Corporation’s Unopposed Motions to: Intervene
`
`Pursuant to Rule 24 and Modify Schedule (ECF No. 59). The parties agree that Microsoft’s source
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`code relating to the Rapid Target Acquisition (RTA) feature is key evidence that may establish
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`whether Microsoft’s product infringes Plaintiff’s patent. See Transcript of December 9, 2021
`
`Hearing (ECF No. 238) (Dec. 9, 2021 Tr.) at 7:3-11, 22:5-14, 40:5-7. Unsurprisingly, issues
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`concerning this source code have caused conflict throughout discovery.
`
`Pending before the Court is Plaintiff’s Motion for Costs and Sanctions Under Rule 37 (ECF
`
`No. 272) (Pl.’s Mot.). Plaintiff alleges that Microsoft produced deficient code in September 2021
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`and provided inaccurate responses to Plaintiff’s interrogatories. Id. at 5-6.2 Plaintiff asserts that
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`it relied on these purportedly deficient discovery responses in crafting its January 6, 2021
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`supplemental infringement contentions. Id. Subsequently, Microsoft revised its interrogatory
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`responses several times and, in March 2022, produced additional source code, even after certifying
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`on September 18, 2021, that it had “substantially completed” its source code and document
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`production. Id. at 6. Plaintiff states that Microsoft’s 2022 production and interrogatory revisions
`
`
`2 Citations throughout this Memorandum and Order refer to the ECF-assigned page numbers,
`which do not always correspond to the pagination within the document.
`
`2
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`

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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 3 of 22
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`necessitated a second source code review, for which Plaintiff now moves for reimbursement. Id.
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`at 6-7. Plaintiff further seeks to prevent Microsoft “from relying on documents and source code
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`produced after SAIC’s January 6, 2021 supplemental contentions to support its non-infringement
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`arguments.” Id. at 7. Microsoft opposes on the grounds that it “timely produced substantially all
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`of the relevant code,” and that the source code it produced in March 2022 is “ancillary code.”
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`Microsoft’s Opposition to Plaintiff’s Rule 37 Motion (ECF No. 279) (MSFT’s Response) at 4-5.
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`For the reasons explained below, Plaintiff’s Motion for Costs and Sanctions Under Rule 37 is
`
`DENIED.
`
`BACKGROUND
`
`Familiarity with prior proceedings in this action is presumed. See, e.g., Sci. Applications
`
`Int'l Corp. v. United States, 135 Fed. Cl. 661 (2018); Sci. Applications Int'l Corp. v. United States,
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`154 Fed. Cl. 594 (2021); Sci. Applications Int'l Corp. v. United States, 156 Fed. Cl. 486 (2021);
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`Sci. Applications Int'l Corp. v. United States, No. 17-cv-825, 2022 WL 3147518 (Fed. Cl. July 28,
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`2018). Relevant here, Plaintiff alleges that “Microsoft is providing systems to the Government,
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`with the Government’s authorization and consent,” that infringe one or more claims of U.S. Patent
`
`No. 9,229,230 (the ’230 patent). Pl.’s Mot. at 7. The ’230 patent is directed to a method and
`
`system for video image registration in a heads-up display. See Pl.’s Mot., Exhibit 3 (ECF No. 273)
`
`(’230 patent) at Abstract. The following claim elements are common to all of the’230 patent’s
`
`claims:3
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`(a) receive video images from the first video source and from the second video
`source,
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`(b) receive motion data indicative of motion of the first and second video sources,
`
`
`3 Independent claims 15 and 29 — method and computer-readable medium claims, respectively
`— rephrase operations (a)-(e) using gerunds. See ’230 patent at 26:27-47 (Claim 15), 28:16-38
`(Claim 29).
`
`3
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 4 of 22
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`(c) identify, based on the received motion data, a part of a first video source image
`that potentially represents a portion of the external environment represented in a
`part of a second video source image;
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`(d) evaluate, based on a comparison of data from the first and second video source
`images, the identification performed in operation (c); and
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`(e) display at least a portion of the first video source image and at least a portion of
`the second video source image such that the second video source image portion
`overlays a corresponding region of the first video source image portion, wherein
`the corresponding region represents a portion of the external environment
`represented in the second video source portion.
`
`’230 patent at 24:25-51 (Claim 1); see also id. at 26:27-30:42 (Claims 15-41).
`
`I.
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`Plaintiff’s Discovery Requests
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`
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`The present dispute centers on one request for production and two interrogatories. See Pl.’s
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`Mot. at 7-8. On February 19, 2021, Plaintiff served Request for Production 51 on Microsoft,
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`seeking the following:
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`Source Code sufficient to demonstrate
`
`
`
`
`
`
`
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`MSFT’s Response, Exhibit E (ECF No. 279-7) (Ex. E) at 3; see Pl.’s Mot. at 7 n.1.
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`At the same time, Plaintiff “served interrogatories asking Microsoft to identify what source
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`code is used by the accused Rapid Target Acquisition (‘RTA’) feature (No. 13) and to provide a
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`list of all source code that has been produced and state whether that code has been on a device
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`delivered to the Government (No. 14).” Pl.’s Mot. at 7-8. Interrogatory 13 states, “[f]or each
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`Accused Product, including past and planned versions of Accused products, identify what Source
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`Code is compiled, linked, and loaded on that Accused Product when the Rapid Target Acquisition
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`(‘RTA’) feature is used.” Pl.’s Mot., Exhibit 11 (ECF No. 272-10) (Ex. 11) at 3. Relatedly,
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`Interrogatory 14 states, “[f]or each Accused Product, including past and planned versions of
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`4
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 5 of 22
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`Accused Products, identify what Source Code has been produced in response to any Request for
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`Production served in this case and indicate whether that code has been compiled on a device
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`delivered to the Government.” Id. at 4.
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`On May 28, 2021, Plaintiff then committed to providing supplemental infringement
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`contentions to Microsoft 90 days after Microsoft certifies “that it has substantially completed
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`production (source code and non-source code) for that prototype/product.” Plaintiff’s Motion to
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`Move Agreed-On Contentions Date and Compel Discovery Under Court of Federal Claims Rules
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`26 and 30 (Pl.’s Mot. to Move Contentions Date) (ECF No. 230), Exhibit 1 (ECF No. 230-1) at 3.
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`II. Microsoft’s Initial Production and Responses
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`On September 18, 2021, Microsoft produced the first set of source code for two of the
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`accused products in this case, the
`
` and
`
` prototypes. See Pl.’s Mot. to Move Contentions
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`Date at 2; Pl.’s Mot. to Move Contentions Date, Exhibit 2 (ECF No. 230-2) at 44. This production
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`included “the repository of code responsible for implementing the RTA feature.” MSFT’s
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`Response, Exhibit A (ECF No. 279-1) (Ex. A) ¶ 2. On September 27, 2021, Microsoft served
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`supplemental responses to Plaintiff’s Interrogatories 13-14. See Ex. 11 at 4-6. Microsoft answered
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`Interrogatory 13 by referencing its answer for Interrogatory 14. Id. at 4. In response to Plaintiff’s
`
`Interrogatory 14, Microsoft stated, inter alia:
`
`Microsoft has produced for inspection source code for software corresponding to
`the
` and
` prototype versions of Microsoft’s
`, which include
`the source code directories identified in MSFT-0019467-MSFT-00194731 and
`MSFT-00194623-MSFT-00194678, respectively. The source code produced for
`inspection can be compiled, when put in the proper environment, and can then be
`loaded on to a device to allow the
` and
` prototype versions to function,
`including to perform a prototype version of the Rapid Target Acquisition function.
`Microsoft further indicates that the source code for the software corresponding to
`the
` and
` prototype version of Microsoft’s
` has been compiled
`and delivered on a device to the Government.
`
`Id. at 6.
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`5
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 6 of 22
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`III. The Parties’ Subsequent Discovery Correspondence
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`Plaintiff quickly challenged the sufficiency of Microsoft’s responses and productions. See,
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`e.g., Pl.’s Mot., Exhibit 1 (ECF No. 272-1) (Ex. 1); Pl.’s Mot., Exhibit 2 (272-2) (Ex. 2). First, on
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`September 30, 2021, Plaintiff’s counsel emailed Microsoft’s counsel seeking more definite
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`responses to Plaintiff’s Interrogatories 13 and 14. Ex. 2 at 3. Microsoft stood by its September
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`18, 2021 certification of substantial completion of document production, including its production
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`of source code. Id. at 2. Specifically, Microsoft reiterated that the code directories identified in
`
`its response to Interrogatory 14 “correspond to the software for the
`
` and
`
` prototype
`
`versions of Microsoft’s
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`, and accordingly, reflect what Source Code is compiled,
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`liked [sic], and loaded on each Accused Product when the Rapid Target Acquisition feature is
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`used.” Id. (internal quotations omitted).
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`Subsequently, after reviewing Microsoft’s produced source code, Plaintiff raised more
`
`detailed objections to the adequacy of Microsoft’s production. See Ex. 1 at 5-6. According to
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`Plaintiff’s source code expert, Microsoft’s September 2021 code production lacked several crucial
`
`files. See Pl.’s Mot., Exhibit 10 (ECF No. 272-9) (Ex. 10). Plaintiff alleged that the produced
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`code lacked files necessary to determine whether the accused products receive
`
` from
`
`various data sources:
`
`The September 2021 code production included source code files for two versions
`of the accused device –
` and
`. For each version, Microsoft produced the
`files
` and
`, which can
`
`. But Microsoft did not produce the corresponding files
`
`
`
`
`
`
`
`
`. Without these corresponding
`files, certain interfaces within these files appeared to be inactive or not used. As a
`result, it was unclear exactly what type of
`
`.
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`responsible
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`for
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`Id. ¶ 6(a) (emphasis in original). It further alleged that the produced code lacked files necessary
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`for
`
`:
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`6
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 7 of 22
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`
`
` and
`Microsoft’s September 2021 code production for
`the
`. Instead, Microsoft only produced
`
`.
`
`.
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`documents in March 2022 confirming that
`
`Id. ¶ 6(d) (emphases in original).
`
` did not contain
`
`
`
`
`
`
`. Microsoft produced technical
`
`.
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`Plaintiff explained these perceived deficiencies, as well as a few more, in a November 1,
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`2021 email to Microsoft. See Ex. 1 at 5-6. Specifically, Plaintiff raised six perceived shortcomings
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`in Microsoft’s production: (1) the produced files did not appear to use
`
`; (2) the
`
`code appeared to be
`
`; (3) the produced code allowed for
`
`
`
`
`
`; (4) the produced code could
`
`; (5) the production lacked the code that causes
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`; and (6) the production lacked the
`
`,
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`which was referenced in the produced source code. Id.
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`Two weeks later, Microsoft sent an email to Plaintiff addressing these concerns. See id. at
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`4. Microsoft’s counsel again confirmed “that the source code produced by Microsoft for inspection
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`includes . . . the code for the RTA function that is compiled, linked, and/or loaded on the two
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`prototypes,
`
` and
`
`.” Id. Microsoft also disclosed for the first time “that the produced code
`
`also includes
`
` prototype that included a
`
`
`
`.” Id. It further explained that the code used to invoke the RTA feature
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`“is outside the RTA feature and . . . would require production of essentially the entire source code
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`for the
`
`, which would entail production of a vast amount of code that has nothing to
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 8 of 22
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`do with the RTA feature.” Id. Similarly, Microsoft took issue with the request for the code to
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`clarified that
`
`.” Id.
`
`. Id. Finally, Microsoft
`
`
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`Plaintiff then flew its experts back to Microsoft’s offices to reanalyze the produced code.
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`See Pl.’s Mot. to Move Contentions Date at 4; Ex. 1 at 3. Plaintiff’s experts again concluded “that
`
`the produced code is currently configured to use
`
`.” Pl.’s
`
`Mot. to Move Contentions Date at 4. When pressed on this perceived defect, Microsoft again
`
`stated that it “stands by its representations . . . that the source code provided for inspection allows
`
`for both
`
`.” Pl.’s Mot., Exhibit 7 (ECF No. 272-6) (Ex. 7) at 8.
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`Microsoft then explained it would not provide “detailed technical information . . . regarding how
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`the source code functions” through emails between counsel. Id. Instead, it explained that “such
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`detailed analysis of the specifics of the lines of code involved and how the various files relate to
`
`one another to perform various steps to implement the accused RTA function
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` is, of
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`course, more suitably addressed via discovery, such as expert analysis of the code.” Id.
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`IV.
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`SAIC’s Motion for Extension of Time to Supplement Infringement Contentions
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`On November 24, 2021, the day after Plaintiff’s experts reviewed Microsoft’s source code
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`for a second time, Plaintiff filed a letter brief seeking additional time to serve the supplemental
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`infringement contentions it had agreed to serve on Microsoft. See Pl.’s Mot. to Move Contentions
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`Date. Plaintiff explained that although it had originally agreed to serve supplemental infringement
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`contentions 90 days after Microsoft certified substantial completion of document production,
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`which had already occurred, it should not be required to serve updated infringement contentions
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`because it had “discovered material deficiencies in Microsoft’s production, calling into question
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`8
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 9 of 22
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`both Microsoft’s certification and the methodology that Microsoft has used to search for and
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`produce documents in this case.” Id. at 2. Specifically, Plaintiff argued that Microsoft (1) failed
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`to produce relevant software development kits (SDKs) in its initial disclosures, even after Plaintiff
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`specifically asked for the SDKs; (2) refused to produce documents describing algorithms
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`referenced in previously produced materials or state that it did not have such additional documents;
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`and (3) refused to update its discovery responses, specifically to Plaintiff’s Interrogatories 13 and
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`14, to state which source code is actually run on the accused devices that had been delivered to the
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`Government. Id. at 2-4. Plaintiff concluded by averring “that the code produced is not the code
`
`that has been used for
`
`.” Id. at 4.
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`Microsoft responded by explaining “that the code produced is the actual code used in the
`
`two accused prototypes.” Letter to Honorable Eleni M. Roumel from Thomas L. Halkowski
`
`Regarding Discovery Dispute (ECF No. 234) at 3. It also explained that its discovery response as
`
`to which code the prototypes use “clarifies that the code could not be compiled on the production
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`laptop, but that it can be compiled, when put in the proper environment, and can then be loaded to
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`allow the two accused prototypes to perform the allegedly infringing RTA function.” Id. (internal
`
`quotations omitted). Notwithstanding its contention that it had responded completely to Plaintiff’s
`
`requests, Microsoft committed to supplementing its responses to Plaintiff’s Interrogatories 13 and
`
`14, as Plaintiff had requested. Id. Microsoft further stated that it had located additional SDK
`
`materials and that it would be producing those documents. Id. at 4. Regarding algorithm
`
`documentation, Microsoft explained that documentation is continuously generated as development
`
`on the prototypes proceeds and that it anticipated “providing another general supplement to its
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`document production early next year.” Id.
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`9
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 10 of 22
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`On December 9, 2021, at a hearing on Plaintiff’s motion for additional time to serve
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`supplemental infringement contentions, Microsoft again reiterated its position that the code it
`
`produced was what Plaintiff requested: “I’ve confirmed with SAIC in writing that this is the actual
`
`source code that’s in the product — the prototype that went to the Government.” Dec. 9, 2021 Tr.
`
`at 26:23-25. During the hearing, this Court asked Microsoft whether it understood that Plaintiff’s
`
`complaint entailed its inability to see “
`
` of how the product work[s].” Id. at 27:17-
`
`18. Microsoft confirmed that it understood Plaintiff’s complaint and had produced the information
`
`Plaintiff sought:
`
`That’s my understanding of their argument, but as we’ve explained, . . . I’ve
`consulted with the engineers at Microsoft and I’ve confirmed for SAIC, as we did,
`I think, in our interrogatory, . . . this is the source code. It allows for both
`
`, and that’s not unusual, particularly in a code type form,
`to have that dual capability because you want to be able to check things and work
`out some issues by allowing
`. But we have confirmed . . . that
`this source code is the stuff that went into the device that went to the Government,
`the prototype that works on
`. It couldn’t be any more clear. . . . But our
`point is we’ve produced it. And, in fact, as I mentioned before, we have a real -- at
`least in my view, an incentive to produce and make sure they’ve got the best
`information because what we get back in contentions is only going to be as good as
`the information we give them. And so we’re trying to give them the best
`information we’ve got, most up to date information we’ve got.
`
`Id. at 27:23-29:5.
`
`This Court also urged Microsoft to provide more certainty on when it planned to
`
`supplement its responses to Plaintiff’s Interrogatories 13 and 14. Id. at 29:9-11. Microsoft
`
`represented to this Court that it would update its responses within 30 days of the hearing. See id.
`
`at 30:6-8.
`
`
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`After considering the parties’ briefing and arguments, this Court denied in part Plaintiff’s
`
`Motion for an Extension of Time to Serve Its Infringement Contentions. Id. at 46:11-13; Order
`
`Denying in Part Plaintiff’s Motion for Extension of Time to Supplement Infringement Contentions
`
`and Compel Discovery (ECF No. 235) (Order on Mot. for Extension of Time). The Court further
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 11 of 22
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`noted that “the time has come for . . . some initial infringement contentions.” Dec. 9, 2021 Tr. at
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`46:14-16. It also explained that Plaintiff could move to amend those contentions with new
`
`evidence as Microsoft supplemented its discovery responses and made additional productions. Id.
`
`at 47:24-48:12. While this Court did not grant Plaintiff’s broad request for an extension of time
`
`based on deficiencies in Microsoft’s discovery responses and productions, it did grant a short
`
`extension, until January 6, 2022, for Plaintiff to obtain source code printouts from Microsoft. Id.
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`at 51:12-52:4; Order on Mot. for Extension of Time.
`
`V.
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`Post-Hearing Supplemental Discovery Responses and Productions
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`Following the December 9, 2021 hearing, the parties continued negotiating over source
`
`code printouts. See MSFT’s Response, Exhibit G (ECF No. 279-9). While Microsoft continued
`
`to take a narrow view of the source code to which it believed Plaintiff was entitled as “reasonably
`
`necessary,” it eventually agreed to move discussions forward by identifying the source code files
`
`most relevant to the accused RTA functionality. Id. at 2.
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`Then, on January 12, 2022, Plaintiff pressed Microsoft for additional information regarding
`
`its source code productions and its prior statements regarding its substantial completion of
`
`document production. See Ex. 7 at 2-3. Plaintiff requested Microsoft identify the
`
` that
`
`Microsoft had told this Court were present in the previously produced source code. Id. at 2.
`
`Plaintiff also asked for the identification of the engineer whom Microsoft’s counsel referenced
`
`when stating to the Court that Microsoft had confirmed the produced source code was the
`
`
`
`. Id. Microsoft’s counsel refused to answer those questions during the parties’ meet and
`
`confer. Id.; see also Pl.’s Mot., Exhibit 8 (ECF No. 272-7). Microsoft agreed only to provide the
`
`requested information after Plaintiff served an interrogatory, and even then, requested an extension
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 12 of 22
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`of time to put together a substantive response to support the representations it made to this Court.
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`See Pl.’s Mot., Exhibit 9 (ECF No. 272-8).
`
`Meanwhile, on January 28, 2022, Microsoft finally supplemented its responses to
`
`Plaintiff’s Interrogatories 13 and 14. See Ex. 11. As with its initial response, Microsoft responded
`
`to Interrogatory 13 by incorporating its answer to Interrogatory 14. Id. Microsoft offered the
`
`following new information for Interrogatory 14:
`
`As SAIC was advised via November 16, 2021, correspondence: (i) the code
`produced for inspection (see source code directories identified in MSFT-
`00194679–MSFT-00194731 and MSFT-00194623–MSFT-00194678) includes,
`but is not limited to, the code for the
` that is compiled,
` and
`linked and executed on the two prototypes,
`, that have been delivered
`to the Government; and (ii) the produced source code includes
`
`
`
`. Among the
` As SAIC
` within the files produced for inspection to SAIC is
`was also advised, via December 15, 2021, correspondence, the bulk of the source
`code concerning the algorithms for the prototype RTA function is located within:
`
`
`A list of the
`of December 2021 to implement the
`identified in MSFTsc-0000230-MSFT-SC-0000234. A list of the
`
` on the prototype as
` are
`
`
` prototype delivered to the government are identified in MSFT-
` on the
`SC-0000235-MSFT-SC-0000239. A list of the
`
`
` on the
`prototype delivered to the government are identified in MSFT-SC-0000240-MSFT-
`SC-0000244.
`
`Id. at 6-7.
`
`Plaintiff again raised objections to Microsoft, requested production of additional source
`
`code, including a list of
`
` for the already-produced RTA code, and requested
`
`supplemental responses to Plaintiff’s Interrogatories 13 and 14. See Pl.’s Mot., Exhibit 4 (ECF
`
`No. 272-3). Microsoft promptly began assembling a list of
`
` for Plaintiff. Ex. A ¶ 15.
`
`While Plaintiff waited for further code supplements, Microsoft responded to Plaintiff’s
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 13 of 22
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`Interrogatory 20, which Microsoft had originally suggested Plaintiff interpose to learn the technical
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`basis for Microsoft’s representations that the originally produced code could accept
`
`. See
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`MSFT’s Response, Exhibit M (ECF No. 279-15). As Microsoft explained in its February 21, 2022
`
`response to Interrogatory 20:
`
`When the RTA functionality is implemented in
`
`In particular
`
`the
`
`functions
`
`
`
`
`
`
`
`
`
`Id. at 2.
`
`
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`Next, in March of 2022, Microsoft made a second source code production. See Ex. 10 ¶ 6;
`
`Ex. A ¶¶ 11-12. This new code included files responsible for
`
`. Ex. 10
`
`¶¶ 6(b), (e). The parties disagree on whether this supplemental code was necessary for determining
`
`the type of
`
` the core RTA code and the type of
`
`
`
` the core RTA code. Compare Ex. 10 ¶ 6(a) (declaring that Microsoft’s source code produced
`
`in September 2021 lacked certain files, making it “unclear exactly what type of
`
`
`
`
`
`”), with Ex. A ¶ 10 (“Because input data and output data needs to be of the same type to
`
`reliably test or debug the code, a person knowledgeable about code would have understood, from
`
`a review of the
`
` along with the remainder of the code produced in September
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 14 of 22
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`2021, the type of
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` the core RTA code and
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`
`
`the RTA code.”).
`
`On April 1, 2022, nearly two months after Plaintiff’s objection to Microsoft’s second
`
`supplemental response to Interrogatory 14, Microsoft served its third updated response to
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`Plaintiff’s Interrogatory 14:
`
`In response to the Requests for Production served in this case and certain requests
`from SAIC for additional code, Microsoft further supplements its prior responses
`to this interrogatory to state it has produced for inspection source code for software
`corresponding to the
` and a more current prototype version of
`Microsoft’s
` – as detailed in MSFTSC-0000362-894. A list of the
`
` on the more current
` are identified in
`
` on the
`prototype delivered to the government are identified in MSFT-SC-0000895-
`900. A list of the
`
` prototype
`
`prototype to implement the
`MSFT-SC-0000355-361. A list of the
`
` on the
`delivered to the government are identified in MSFT-SC-0000901-907.
`
`Ex. 11 at 7.
`
`APPLICABLE LEGAL STANDARDS
`
`Under the Rules of the United States Court of Federal Claims (RCFC or Rule(s)), a party
`
`“who has responded to an interrogatory [or] a request for production . . . must supplement or correct
`
`its disclosure or response . . . in a timely manner if the party learns that in some material respect
`
`the disclosure or response is incomplete or incorrect.” RCFC 26(e)(1)(A). Supplemental
`
`responses and disclosures are unnecessary when the additional or corrective information has
`
`“otherwise been made known to the other parties during the discovery process or in writing.” Id.
`
`“The duty to supplement is a continuing duty, and no additional interrogatories by the requesting
`
`party are required to obtain the supplemental information — rather, the other party has an
`
`affirmative duty to amend a prior response if it is materially incomplete or incorrect.” Zoltek Corp.
`
`v. United States, 71 Fed. Cl. 160, 164 (2006). This Court evaluates a party’s compliance with its
`
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 15 of 22
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`duty to supplement under Rule 26 by analyzing: “(1) whether there was a prior response; (2)
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`whether the response became materially incorrect or incomplete; (3) whether the [party] knew that
`
`the response was incomplete; and (4) whether the corrective information was otherwise made
`
`known to [the movant] through the discovery process or in writing.” Id.
`
`Failure to comply with the duty to supplement may result in sanctions. See Securiforce
`
`Int’l Am., LLC v. United States, 127 Fed. Cl. 386, 402 (2016) (“[I]f a party fails to supplement its
`
`discovery responses in accordance with RCFC 26(e), including the party's previous responses to
`
`requests for admissions and interrogatories, the court may order that party to pay the reasonable
`
`expenses, including attorney's fees, caused by the failure.”). Rule 37 states:
`
`If a party fails to provide information or identify a witness as required by RCFC
`26(a) or (e), the party is not allowed to use that information or witness to supply
`evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
`justified or is harmless. In addition to or instead of this sanction, the court . . . may
`order payment of the reasonable expenses, including attorney’s fees, caused by the
`failure.
`
`RCFC 37(c)(1).
`
`The violating party bears the burden “to prove that the violation was justified or harmless.”
`
`Zoltek, 71 Fed. Cl. at 167. Courts consider several factors to determine if a party deserves
`
`sanctions: “(1) the importance of the information withheld; (2) the prejudice or surprise to the party
`
`against whom the evidence is offered; (3) the likelihood of disruption of the trial; (4) the possibility
`
`of curing the prejudice; (5) the explanation for the failure to disclose; and (6) the presence of bad
`
`faith or willfulness in not disclosing the evidence.” Id. at 168. The moving party generally need
`
`not demonstrate the non-movant’s bad faith. See id. (declining to impose a bad faith requirement
`
`for Rule 37 motions, “instead choosing to subsume it into the justification requirement in analyzing
`
`the explanation for the party's failure to disclose”); Securiforce, 127 Fed. Cl. at 396 (noting that
`
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`Case 1:17-cv-00825-EMR Document 318 Filed 09/15/22 Page 16 of 22
`
`
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`although Rule 37 does not explicitly impose a bad faith requirement, harsh sanctions such as “de
`
`facto dismissal” necessitate a showing of bad faith).
`
`DISCUSSION
`
`Plaintiff asks this Court to sanction “Microsoft [for] making statements to SAIC and to the
`
`Court that Microsoft knew or should have known were false.” Pl.’s Mot. at 7. Specifically, SAIC
`
`urges this Court to order Microsoft “to reimburse SAIC for the costs and fees incurred in analyzing
`
`incorrect and incomplete source code and preparing supplemental contentions.” Id. In addition or
`
`in the alternative, SAIC seeks an order prohibiting Microsoft “from relying on documents and
`
`source code produced after SAIC’s January 6, 2021 supplemental contentions to support its non-
`
`infringement arguments.” Id. Plaintiff’s requests stem from several responses to Plaintiff’s
`
`discovery requests, including: (i) Microsoft’s production of additional code in March 2022 after
`
`Microsoft had stated in September 2021 that it had substantially completed production of the core
`
`RTA code; and (ii) Microsoft’s responses to Plaintiff’s Interrogatories 13 and 14, which
`
`purportedly “are wrong all the way through April of 2022 because they state that all of the source
`
`code produced in this case is used by the accused feature.” Id. at 17-18. In both contexts, however,
`
`the record does not indicate that Microsoft engaged in deception “or other egregious conduct
`
`worthy of sanctions.” Securiforce, 127 Fed. Cl. at 407. Accordingly, the Court declines to impose
`
`the sanctions Plaintiff seeks.
`
`I. Microsoft’s Source Code Production Does Not Warrant Sanctions
`
`According to Plaintiff, “there is no reasonable dispute that Microsoft withheld crucial
`
`information after it told SAIC that it had ‘substantially completed’ production and even after SAIC
`
`identified the specific information being withheld.” Pl.’s Mot. at 16. Specifically, Plaintiff alleges
`
`that Microsoft “withheld
`
` code [that] is directly relevant to asserted claim
`
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`elements, which require, inter alia, ‘receiv[ing] video images from a first’ and second ‘video
`
`source’ and