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AgroFresh Inc. v. Essentiv LLC

United States District Court, D. Delaware

February 4, 2019

AGROFRESH INC., Plaintiff,


          Sherry R. Fallon United Spates Magistrate Judge


         Presently before the court in this patent infringement action is the motion to amend the trade secrets disclosure, filed by plaintiff AgroFresh, Inc. ("AgroFresh"). (D.I. 335) For the following reasons, AgroFresh's motion to amend its trade secrets disclosure is granted-in-part.


         On September 29, 2017, the court entered a scheduling order requiring AgroFresh to identify its alleged trade secrets at issue with reasonable particularity within thirty days of the entry of the scheduling order, and to supplement or amend its identification of alleged trade secrets on or before April 23, 2018. (D.I. 122 at ¶ 2(b)) In accordance with the scheduling order, AgroFresh filed its initial trade secrets disclosure on October 27, 2017. (D.I. 336, Ex. A) On April 19, 2018, AgroFresh moved for an extension of the deadline to June 22, 2018, alleging that defendants Decco U.S. Post-Harvest Inc., Cerexagri, Inc., and UPL Ltd. (collectively, "defendants") had not provided any meaningful discovery responses. (D.I. 171) Over the following months, defendants produced approximately 90, 000 pages of documents, including more than 45, 000 pages of documents produced in October 2018. (D.I. 300, Exs. 1-3)

         On October 5, 2018, defendants sent a letter to AgroFresh asserting that AgroFresh's original disclosure of technical trade secrets made on October 27, 2017 did not meet the requisite reasonable particularity standard. (D.I. 258, Ex. 3 at 4-5) On November 6, 2018, AgroFresh served a supplemental response to defendants' Interrogatory 1, which asked for an identification of trade secrets, in an effort to address the issues identified in defendants' October 5 letter. (D.I. 297, Ex. 2 at 4-18) Following AgroFresh's supplementation of its interrogatory response, defendants served written discovery requests pertaining to the supplemental response. (D.I. 300, Ex. 6 at 2-3; Ex. 7 at 8; Ex. 8 at 11)

         On November 27, 2018, the court ordered AgroFresh to serve a supplemental trade secrets disclosure on defendants by December 4, 2018, and further ordered that the parties meet and confer to reach agreement on AgroFresh's proposed amendments to the trade secrets disclosure. (11/27/18 Oral Order) The parties failed to reach agreement during the December 6, 2018 meet and confer and, as a result, AgroFresh filed the instant motion on December 7, 2018, requesting leave to amend its trade secrets disclosure. (D.I. 335)


         If a party seeks to extend a deadline imposed by the scheduling order, the court must apply the "good cause" standard in accordance with Rule 16 of the Federal Rules of Civil Procedure. Carrier Corp. v. Goodman Global, Inc., 49 F.Supp.3d 430, 433 (D. Del. 2014). Pursuant to Rule 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." "The good cause element requires the movant to demonstrate that, despite diligence, the proposed claims could not have been reasonably sought in a timely manner." Venetec Int'l v. Nexus Med., 541 F.Supp.2d 612, 618 (D. Del. 2010). "[T]he good cause standard under Rule 16(b) hinges on the diligence of the movant, and not on the prejudice to the non-moving party."[1] Id. "Whether or not the requirements of Rule 16(b) have been met is a procedural issue not pertaining to the patent laws, and therefore regional circuit law applies to this question." See Slip TrackSys., Inc. v. Metal-Lite, Inc., 304 F.3d 1256, 1270 (Fed. Cir. 2002).


         As a preliminary matter, the court grants AgroFresh's motion to the extent that it applies to the portions of the proposed amended trade secrets disclosure highlighted in green, which are not the subject of the parties' dispute. (D.I. 336, Ex. B) The court's discussion of the disputed portions, which were not highlighted in the proposed amended trade secrets disclosure, is set forth below.

         A. Business Trade Secrets [2]

         In support of its motion, AgroFresh contends that it has good cause to supplement the trade secrets disclosure with the newly-disclosed "business trade secrets" because AgroFresh obtained key evidence in support of these trade secrets after the original deadline to amend on April 23, 2018, despite serving discovery requests on the subject in September 2017. (D.I. 336 at 7-9; D.I. 363 at 6-7) In response, defendants allege that AgroFresh cannot establish good cause because it was in possession of the key documents relating to its newly asserted business trade secrets well before the April 2018 deadline, and the productions made following the April 2018 deadline contained information duplicative of the timely productions. (D.I. 351 at 5-9)

         1. AgroFresh's employee ...

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