UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

________________ 

BRANDEIS UNIVERSITY and ) 

GFA BRANDS, INC., ) 

) Nos. 1:12-cv-01508 

Plaintiffs, ) 1:12-cv-01509 

 v. ) 1:12-cv-01510 

) 1:12-cv-01511 

KEEBLER CO.; ) 1:12-cv-01512 

FAMOUS AMOS CHOCOLATE CHIP ) 1:12-cv-01513 

COOKIE COMPANY, LLC; ) 

MURRAY BISCUIT CO. LLC; ) 

VOORTMAN COOKIES LTD.; ) Judge Richard A. Posner. 

BREMNER FOOD GROUP, INC.; ) 

COOKIE SPECIALTIES INC.; ) 

TOPCO ASSOCIATES LLC; ) 

THE PILLSBURY COMPANY, LLC; ) 

UNILEVER UNITED STATES, INC.; ) 

CONOPCO, INC.; and ) 

NESTLÉ USA, INC., ) 

 ) 

Defendants. ) 

 ) 

 

ORDER OF OCTOBER 18, 2012 

Recipe and Production Method Discovery [dkt. 345] 

Plaintiffs’ motion to compel is granted in part. The defendants are ordered to 

produce information documenting the component ingredients and methods of 

producing each accused product at all times during the period of alleged infringement. 

The defendants’ production shall provide all relevant details (exemplified by Keebler’s 

operating manual for the mini vanilla wafers). 

 Bremner’s counsel represented at today’s hearing that he cannot produce such 

documents because Bremner does not have written instructions for producing its 

Case: 1:12-cv-01508 Document #: 369 Filed: 10/18/12 Page 1 of 3 PageID #:11246
products that are comparable in specificity to the instructions in Keebler's operating 

manual. Bremner must file an affidavit by Friday, October 19, attesting to whether this is 

the case, and explaining the level of specificity of any written instructions that it does 

maintain. If Bremner does not have written instructions comparable to Keebler's 

operating manual, it must explain how its production method is communicated to its 

employees, and must identify employees who have knowledge of the method. 

Recipe, Production and Sales Link 

Through interrogatories, the plaintiffs request a narrative description that links 

recipes and preparation instructions to sales data. This is necessary to identify which 

products (if any) infringe its patents, given that recipes and production methods for any 

given product may change over time, and to associate (potentially) infringing products 

with sales information in order to establish damages. Because of the volume of 

documents necessary to enable this linkage, and the idiosyncratic manner in which the 

data appear to be kept, the defendants have a significant advantage in linking 

production and sales information. Each defendant who appeared today shall promptly 

produce a single document that links information about the ingredients and production 

methods of each accused product (such as a detailed operating manual) to existing sales 

data. Linking may be done by SKU or UPC or by some other product identification 

method. The document shall also identify the time period during which each recipe and 

production process were in effect. 

Bremner and Topco’s Marketing and Contract Documents [dkt. 351] 

The plaintiffs’ motion to compel Bremner and Topco to produce documents 

relating to marketing and to manufacturing contracts is granted. Bremner and Topco 

claim that they were unaware that the plaintiffs wanted documents other than 

“traditional” marketing materials, and say they will produce all requested documents 

by October 26. That is hard to believe, and the suggested deadline would harm the 

plaintiffs; their depositions (some of which are scheduled for next Tuesday, October 23) 

and expert witness preparation will suffer if Bremner and Topco do not act with 

dispatch. As soon as possible, Bremner and Topco must comply with the plaintiffs’ 

document requests, which cover marketing materials (traditional or not), documents 

showing the market demand for particular products (such as price lists and market 

studies), and documents relating to manufacturing agreements (such as contracts and 

purchase orders from Topco and other buyers). The plaintiffs, Bremner, and Topco shall 

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file affidavits no later than October 29 certifying compliance (or lack of compliance) with 

this order; I will withhold judgment on costs, fees, and other relief until that time. 

Deposition of Kalyana Sundram

The defendants have sought unsuccessfully to depose Dr. Kalyana Sundram, one 

of the inventors of the patents at issue in this litigation. The plaintiffs represented at 

today’s hearing that they have a contractual agreement with Dr. Sundram to provide 

testimony as required in this case, but that despite their diligent efforts they have been 

unable to secure his appearance at a deposition by the defendants because he is based in 

Malaysia and frequently travels for business. The plaintiffs must continue to make 

diligent efforts to secure Dr. Sundram’s participation in a live or video deposition, and 

to produce relevant documents. Should Dr. Sundram’s continued delay affect the 

defendants’ expert reports, I will consider motions by the defendants to supplement 

their expert reports. 

 

 United States Circuit Judge 

October 18, 2012 

Case: 1:12-cv-01508 Document #: 369 Filed: 10/18/12 Page 3 of 3 PageID #:11248