IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

INVENTUS POWER, INC., and ICC

ELECTRONICS (DONGGUAN) LTD. 

Plaintiffs, 

v. 

SHENZHEN ACE BATTERY CO., LTD.,

Defendant. 

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Civil Action No.: 1:20-cv-03375 

Honorable Robert M. Dow, Jr. 

Magistrate Judge Jeffrey Cummings 

PLAINTIFFS’ MOTION TO ADDRESS DEFENDANT ACEPOWER’S FAILURE TO 

RESPOND TO INTERROGATORIES AND REQUESTS FOR PRODUCTION 

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION .............................................................................................................. 1

II. BACKGROUND ................................................................................................................ 2

III. LEGAL STANDARD ......................................................................................................... 7

A. Motion To Compel .................................................................................................. 7

B. Relief For Failure To Participate In Discovery ....................................................... 8

IV. ARGUMENT ...................................................................................................................... 9

A. AcePower Should Be Ordered To Answer And Respond In Writing To 

Inventus’s Interrogatories And Requests For Production ....................................... 9

B. Additional Relief Under Fed. R. Civ. P. 37 Is Warranted .................................... 11

V. CONCLUSION ................................................................................................................. 13

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Ammons-Lewis v. Metro. Water Reclamation Dist. of Greater Chicago, 

No. 11 C 6920, 2012 WL 5363425 (N.D. Ill. Oct. 9, 2012), report and 

recommendation adopted, No. 11 C 6920, 2012 WL 5356041 (N.D. Ill. Oct. 

30, 2012), aff’d, 543 F. App’x 591 (7th Cir. 2013) ...................................................................7 

Autotech Techs. Ltd. P’ship v. Automationdirect.Com, Inc., 

236 F.R.D. 396 (N.D. Ill. 2006) .........................................................................................10, 11

Buonauro v. City of Berwyn, 

No. 08 C 6687, 2011 WL 116870 (N.D. Ill. Jan. 10, 2011), on reconsideration 

in part, No. 08 C 6687, 2011 WL 2110133 (N.D. Ill. May 25, 2011) .....................................10 

Certain Underwriters at Lloyd’s, London Subscribing to Policy No. 

BO823PP1308460 v. AdvanFort Co., 

No. 118CV1421TSETCB, 2019 WL 3366103 (E.D. Va. July 25, 2019) ................................13 

Charter House Ins. Brokers, Ltd. v. New Hampshire Ins. Co., 

667 F.2d 600 (7th Cir. 1981) .....................................................................................................8 

Dickson v. Chicago Allied Warehouses, Inc., 

No. 90 C 6161, 1993 WL 362450 (N.D. Ill. Sept. 15, 1993) ...............................................8, 12 

Equal Opportunity Comm’n v. Sears, Roebuck and Co., 

114 F.R.D. 615 (N.D. Ill. 1987), reconsideration granted in part on other 

grounds, 138 F.R.D. 523 (N.D. Ill. 1991) ..................................................................................8 

Fautek v. Montgomery Ward and Co., Inc., 

96 F.R.D. 141 (N.D. Ill. 1982) ...................................................................................................8 

Meyer v. S. Pac. Lines, 

199 F.R.D. 610 (N.D. Ill. 2001) ...............................................................................................11 

Moriarty v. LSC Illinois Corp., 

No. 98 C 7997, 1999 WL 1270711 (N.D. Ill. Dec. 29, 1999) ...................................................9 

Olivet Baptist Church v. Church Mut. Ins. Co., 

No. 13 C 1625, 2015 WL 765715 (N.D. Ill. Jan. 7, 2015), report and 

recommendation adopted, No. 13 C 1625, 2015 WL 764051 (N.D. Ill. Feb. 

23, 2015) ..................................................................................................................................13 

Trustees of the Suburban v. Bolingbrook Redi-Mix Co., 

2016 WL 1258849 (N.D. Ill. 2016) .........................................................................................12 

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United States v. Ligas, 

No. 04 C 930, 2006 WL 1302468 (N.D. Ill. May 10, 2006) .....................................................8 

Wielgus v. Ryobi Techs., Inc., 

No. 08 CV 1597, 2010 WL 3075666 (N.D. Ill. Aug. 4, 2010) ..........................................10, 12 

Zambrano v. Sparkplug Capital, LLC, 

No. 19 CV 100, 2020 WL 1847396 (N.D. Ill. Apr. 13, 2020) .................................................12 

Statutes 

28 U.S.C.A. ¶ 6 ................................................................................................................................9 

Rules 

Fed. R. Civ. P. 26 .............................................................................................................................5 

Fed. R. Civ. P. 26(f) .........................................................................................................................5 

Fed. R. Civ. P. 33(b) ........................................................................................................................9 

Fed. R. Civ. P. 33(b)(2)....................................................................................................................7 

Fed. R. Civ. P. 34(b)(2)(A) ..........................................................................................................7, 9 

Fed. R. Civ. P. 37 .............................................................................................................1, 3, 11, 14 

Fed. R. Civ. P. 37(a) ........................................................................................................................8 

Fed. R. Civ. P. 37(a)(5)(A) ............................................................................................................12 

Fed. R. Civ. P. 37(b)(2)....................................................................................................................8 

Fed. R. Civ. P. 37(d) ......................................................................................................................11 

Fed. R. Civ. P. 37(d)(1)(A)(ii) .........................................................................................................8 

Fed. R. Civ. P. 37(d)(3)....................................................................................................................8 

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I. INTRODUCTION 

Six weeks after the Court’s Order permitting expedited discovery in this action (Dkt. 48 at 

30-31), Defendant Shenzhen Ace Battery Co., Ltd. (“AcePower”) has completely stonewalled all 

of Plaintiffs Inventus Power, Inc. and ICC Electronics (Dongguan) Ltd.’s (“Inventus”) efforts to 

proceed with the expedited discovery allowed by the Court: AcePower has not produced a single 

document, made any materials available for inspection, provided any of the information requested 

by Inventus, agreed on a protective order, agreed on an ESI or forensic inspection protocol, or 

otherwise agreed to move discovery forward. Several of these issues are to be addressed at the 

hearing set for August 27, 2020. Most recently, AcePower failed to provide any written responses 

to Inventus’s Interrogatories and Requests for Production, which it was obligated by the Court’s 

orders to provide by no later than August 20, 2020. The purpose of this motion is to request that 

the Court order AcePower to immediately respond to those discovery requests—including by 

providing the information sought by Inventus’s Interrogatories and to produce the materials 

required by Inventus’s document requests—and to impose the additional relief provided by Rule 

37 of the Federal Rules of Civil Procedure in these circumstances. 

While Inventus has persistently attempted to move discovery forward in accordance with 

the Court’s orders (Dkts. 48, 55), including by proposing a protective order, electronic discovery 

protocol, and forensic examination protocol, and by issuing written discovery requests, since new 

counsel appeared for AcePower in this case and took over day-to-day communications related 

thereto (Dkts. 56-57, 59), AcePower has stonewalled and refused to meaningfully participate in 

any discovery or protocol discussions, all the while continuing to claim that it has done absolutely 

nothing wrong and going so far as to certify to the Court that it “has not found that it possesses or 

has accessed, reviewed, used, disclosed, or divulged any Inventus documents, files, or other 

materials” (Dkt. 54 at 1). If true, AcePower would have no reason to violate this Court’s orders 

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and the Federal Rules of Civil Procedure by blocking all of Inventus’s attempts to investigate what 

happened to its over 140,000 confidential and trade secret documents which were downloaded to 

external drives by former Inventus employees currently employed by AcePower. Indeed, in 

granting Inventus’s Application for a Temporary Restraining Order and Motion for Expedited 

Discovery, Judge Dow found that “ACE does not make a convincing showing that it has taken any 

actions to prevent the ACE employees from disclosing Plaintiffs’ trade secrets.” Dkt. 48 at 25. 

Since then, AcePower has provided no further information, or any explanation for what happened 

(let alone an exculpatory one). All of this points to one inexorable conclusion: i.e., that AcePower 

is continuing to use Inventus’s trade secrets and is stalling in this Court proceeding while it does 

so. This is not just a matter of case administration; it is urgent that AcePower provides insight into 

its use of Inventus’s trade secrets, so Inventus (and Judge Dow) can take immediate steps to stop 

it. Respectfully, AcePower should not be permitted to continue to refuse to comply with the 

Court’s discovery process while it fails to come close to adequately addressing its ongoing 

possession and use of Inventus’s trade secrets. 

II. BACKGROUND 

This case concerns Woodridge, Illinois-based Inventus’s allegations that Shenzhen, 

China-based AcePower stole massive volumes of Inventus’s trade secret documents and source 

code to use in its development of products intended to compete head-to-head with Inventus. 

Dkt. 1 ¶¶ 1–3. Specifically, through a forensic inspection of its computer systems, Inventus 

determined that in 2019 and continuing to this year, AcePower broadly stole over 140,000 highly 

confidential trade secret documents and source code files relating to Inventus’s industry-leading 

battery technologies in connection with recruiting and hiring a number of high-ranking Inventus 

employees. Dkt. 1 ¶ 36; Dkt. 8 at 7–8; Dkt. 11 ¶ 6. Inventus’s inspection revealed that in the 

weeks and days prior to their departure, those employees, all senior engineers who had worked 

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with Inventus for years and had extensive familiarity with Inventus’s trade secrets, downloaded 

and took with them thousands of Inventus’s confidential trade secret documents and source code 

files—among Inventus’s most valuable intellectual property—to improve and develop 

AcePower’s line of competing battery products, among other things. Id. This was no mere 

coincidence: currently, these engineers hold senior positions at AcePower, leading the 

development and improvement of competing technologies in positions similar to the ones they 

held at Inventus. Id. And, the evidence shows that they attempted to cover their tracks by 

destroying evidence of their theft. See, e.g., Dkt. 11 ¶¶ 14–16, 25. 

Inventus filed its complaint for trade secret misappropriation in this case on June 8, 2020, 

along with an application for a temporary restraining order. Dkts. 1, 8. After extensive briefing 

(including the receipt of many declarations from AcePower attempting to deny its wrongdoing), 

on July 13, 2020, Judge Dow granted a temporary restraining order (“TRO”) to address 

AcePower’s possession and use of Inventus’s trade secrets and also to allow expedited discovery 

relating to Inventus’s forthcoming preliminary injunction motion. Dkt. 48. As shown in the 

parties’ subsequent Joint Status Report, filed on July 21, 2020, the parties entered into various 

agreements related to the expedited discovery authorized by the Court, including a stipulation to 

“a 21-day response period for all written discovery, and agree[ment] to provide substantive 

responses beyond mere objections at the time of response” (Dkt. 55 at 2), which Judge Dow 

adopted (Dkt. 58). Consistent with this stipulation and Judge Dow’s orders, Inventus served 10 

interrogatories and 13 requests for production on AcePower on July 30, 2020 relating to issues 

bearing directly on Inventus’s forthcoming motion for preliminary injunction. Exs. 1-2. For 

example, Inventus’s discovery requests were directed to basic issues underlying Inventus’s 

forthcoming preliminary injunction motion, such as steps AcePower has taken to comply with the 

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temporary restraining order entered by Judge Dow, the circumstances surrounding the recruitment 

of former-Inventus employees employed by AcePower, and details regarding storage devices used 

by the those AcePower employees. Dkt. 48. 

On August 18, 2020, two days before AcePower’s discovery responses were due, counsel 

for Inventus wrote to counsel for AcePower as a courtesy to remind them that “AcePower’s 

responses to that written discovery are due on August 20, 2020” and that “Inventus expects 

fulsome, substantive responses to that discovery to be provided on the deadline (not just 

objections).” Ex. 3 at 4 (8/18/2020 Email from K. Bendix to R. Cheng). Counsel for Inventus 

further requested that “[i]f AcePower does not plan to provide such responses on that deadline, 

please let us know immediately so we may confer over that.” Id. AcePower did not respond. 

 AcePower thereafter failed to serve any responses or objections to Inventus’s written 

discovery requests by the August 20 deadline. On August 21, counsel for Inventus reiterated that 

AcePower’s discovery responses were due on August 20, and again requested that AcePower 

indicate whether it intended to comply with the Court’s orders, “which specifically require the 

parties to conduct written discovery.” Id. at 4 (8/21/2020 Email from K. Bendix to R. Cheng). 

Counsel for AcePower wrote back that “[w]e think you misunderstood some of the Court’s order,” 

and counsel for Inventus immediately requested a meet and confer. Id. During the meet and confer 

on August 21, counsel for AcePower confirmed that AcePower refuses to provide any written 

responses or objections to Inventus’s interrogatories and requests for production, and will continue 

to refuse to provide written responses and objections unless Inventus asks the Court to compel 

AcePower to do so. Id. at 1 (8/22/2020 Email from K. Bendix to R. Cheng). Threatened with the 

instant motion, and without ever indicating that they planned to file such a motion, AcePower filed 

a Motion for Entry of Protective Order (Dkt. 69) to try to preempt this motion. But that motion—

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which does not answer any of the interrogatories, does not agree to produce a single document, 

and does not address numerous of the requests—only further confirms that AcePower does not 

intend to respond to Inventus’s written discovery. 

AcePower’s failure to respond to these discovery requests is not an isolated instance. To 

the contrary, since new counsel appeared for AcePower following the Court’s entry of the TRO 

and order on Inventus’s motion for expedited discovery (Dkts. 56-57, 59), AcePower has engaged 

in numerous dilatory tactics to prevent Inventus from obtaining any of the discovery it needs, and 

is entitled to, during the preliminary injunction discovery period that ends on October 17, 2020—

less than two months from now. See Dkt. 55. For example, as further explained in Inventus’s 

Motion for Status Conference and to Order AcePower to Engage in the Expedited Discovery 

Ordered by the Court (Dkt. 61), AcePower has (1) refused to meet with Inventus for a Fed. R. Civ. 

P. 26(f) conference or provide its Fed. R. Civ. P. 26 disclosures identifying persons with 

knowledge regarding who recruited the former-Inventus personnel, persons who brought 

Inventus’s confidential information over to AcePower, or persons working with the formerInventus employees on AcePower’s products; (2) refused to agree to a protective order unless 

Inventus agrees that AcePower’s employees can have access to Inventus’s “attorneys’ eyes only” 

confidential trade secret information; and (3) refused to attempt to obtain and sequester any stolen 

documents or the electronic media they were brought over on, and has been unwilling to explain 

what steps (if any) it has taken to investigate the theft with the AcePower employees who came 

over from Inventus, or otherwise comply with the Court’s temporary restraining order. Dkt. 61. 

AcePower’s refusal to comply with even its most basic obligations in this case is further illustrated 

by the fact that it did not file a responsive pleading to Inventus’s complaint (Dkt. 1) by its August 

12, 2020 deadline to do so, nor did it respond to numerous subsequent attempts by Inventus to 

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inquire about why AcePower had failed to do so, instead filing a late, and procedurally improper, 

motion to dismiss nearly two weeks later without leave of Court or explanation for its delay after 

Inventus indicated it planned to ask the Court for relief. Ex. 4 (8/23/2020 Letter from K. Bendix 

to R. Cheng). 

AcePower’s failures to participate in its basic obligations in this case since the TRO was 

entered have severely prejudiced Inventus. As just one glaring example, AcePower filed a 

“Certification of Compliance with Temporary Restraining Order” on July 20, 2020 in which it 

purported to have “taken efforts to comply with all terms of the TRO” (Dkt. 54 at 1), and yet 

refuses to provide an answer or other written response to Inventus’s Interrogatory No. 4, which 

requests information about precisely those efforts (“Describe all steps Ace has taken to comply 

with the Temporary Restraining Order entered in this case . . . .”). Ex. 1 at 8. AcePower’s refusal 

to respond is particularly prejudicial in light of Judge Dow’s finding that “ACE does not make a 

convincing showing that it has taken any actions to prevent the ACE employees from disclosing 

Plaintiffs’ trade secrets.” Dkt. 48 at 25. In its same Certification, AcePower claims to have 

conducted unspecified “keyword searches related to Plaintiff to determine if any of the former 

employees’ devices or drives contain any of Plaintiff’s documents, files, or other materials” and 

broadly asserts that it “has not found that it possesses or has accessed, reviewed, used, disclosed, 

or divulged any Inventus documents, files, or other materials.” Dkt. 54 at 1-2. Yet AcePower 

refuses to respond to Inventus’s Interrogatory No. 7, which requests that AcePower “[d]escribe 

any investigation, analysis, study, and/or forensics analysis conducted by Ace . . . regarding Ace’s 

misappropriation, misuse, disclosure, and/or possession of Inventus’s confidential Documents, 

information and/or Inventus Trade Secret Information . . . .”). Ex. 1 at 9. Moreover, AcePower’s 

outside lawyers have not been involved in any material way with AcePower’s alleged efforts, and 

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have been unable to substantiate any of them. Ex. 5 (8/10/2020 Email from K. Bendix to R. 

Cheng) at 1-3. 

To date—a full six weeks after Judge Dow ordered the parties to engage in expedited 

discovery—AcePower has not served a single written discovery response, provided any of the 

information requested by Inventus, or produced a single document or device for inspection. Nor 

has AcePower identified any additional devices—other than eight workstations—where Inventus’s 

trade secrets are or might be housed. Furthermore, despite Inventus’s counsel sending AcePower 

its proposed electronic discovery and forensic examination protocols to govern discovery in this 

case on July 24 (Ex. 5 (7/24/2020 Email from K. Bendix to R. Cheng) at 11), a full month later, 

AcePower still has not responded, or given a date certain by which it would agree to either 

proposal. AcePower’s flagrant disregard for the Federal Rules of Civil Procedure and the rules of 

this Court continue to prejudice Inventus, and must be stopped. 

III. LEGAL STANDARD 

A. Motion To Compel 

“During discovery, the parties are supposed to disclose all relevant information, so that the 

resolution of disputed issues may be based on a full and accurate understanding of the facts and, 

ultimately, produce a fair and just result.” Ammons-Lewis v. Metro. Water Reclamation Dist. of 

Greater Chicago, No. 11 C 6920, 2012 WL 5363425, at *7 (N.D. Ill. Oct. 9, 2012), report and 

recommendation adopted, No. 11 C 6920, 2012 WL 5356041 (N.D. Ill. Oct. 30, 2012), aff’d, 543 

F. App’x 591 (7th Cir. 2013). The Federal Rules of Civil Procedure set forth a time limit for 

responses to interrogatories and requests for production. See Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. 

P. 34(b)(2)(A). Here, the parties stipulated in their Joint Status Report to “a 21-day response period 

for all written discovery,” and agreed that the parties will “provide substantive responses” as 

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opposed to “mere objections at the time of response.” Dkt. 55 at 2. Judge Dow adopted this 

stipulation. Dkt. 58. 

A party may seek an order to compel discovery when the opposing party fails to respond 

to discovery requests. Fed. R. Civ. P. 37(a). “A court has broad discretion under the federal rules 

to resolve discovery disputes and a motion to compel discovery is granted or denied at the 

discretion of the trial court.” United States v. Ligas, No. 04 C 930, 2006 WL 1302468, at *4 (N.D. 

Ill. May 10, 2006). 

B. Relief For Failure To Participate In Discovery 

Fed. R. Civ. P. 37(d)(1)(A)(ii) allows the Court to order sanctions without a prior motion 

to compel if “a party, after being properly served with interrogatories under Rule 33 or a request 

for inspection under Rule 34, fails to serve its answers, objections, or written response.” Dickson 

v. Chicago Allied Warehouses, Inc., No. 90 C 6161, 1993 WL 362450, at *12 (N.D. Ill. Sept. 15, 

1993) (citing Charter House Ins. Brokers, Ltd. v. New Hampshire Ins. Co., 667 F.2d 600, 604 (7th 

Cir. 1981)). “Under the rule, complete and accurate responses are required.” Id. (citing Fautek v. 

Montgomery Ward and Co., Inc., 96 F.R.D. 141, 144–145 (N.D. Ill. 1982)). “Even if a failure to 

respond is the result of negligence, sanctions may be imposed.” Id. “Dilatory and partial 

compliance does not remove a case from the ambit of the rule.” Id. (citing Equal Opportunity 

Comm’n v. Sears, Roebuck and Co., 114 F.R.D. 615, 626 (N.D. Ill. 1987), reconsideration granted 

in part on other grounds, 138 F.R.D. 523 (N.D. Ill. 1991)). The sanctions may include “any of the 

orders listed in Rule 37(b)(2)(A)(i)—(vi),” in addition to an order that AcePower and/or its 

attorneys “pay the reasonable expenses, including attorney’s fees, caused by the failure” to serve 

a written response. Fed. R. Civ. P. 37(d)(3). Fed. R. Civ. P. 37(b)(2) further provides for sanctions 

of a party who fails to obey a court order to provide or permit discovery. See Dkts. 48, 55. 

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IV. ARGUMENT 

A. AcePower Should Be Ordered To Answer And Respond In Writing To 

Inventus’s Interrogatories And Requests For Production 

AcePower’s failure to participate in discovery violates Judge Dow’s July 13 order to 

conduct expedited discovery (Dkt. 48) and the parties’ stipulation to provide fulsome answers to 

written discovery under that order (Dkt. 55), which was adopted and ordered by the Court (Dkt. 

58); see also U.S.Ct. of App. 7th Cir. Atty Conduct, 28 U.S.C.A. ¶ 6 (lawyers “will adhere to all 

express promises and to agreements with other counsel, whether oral or in writing . . . .”); see also

Moriarty v. LSC Illinois Corp., No. 98 C 7997, 1999 WL 1270711, at *2 (N.D. Ill. Dec. 29, 1999) 

(“The Court notes at the outset that plaintiff might complain that LSC has reneged on its 

representation to the district court . . . that LSC would provide the requested discovery.”). 

AcePower’s failure to respond also violates the Federal Rules of Civil Procedure. In particular, 

AcePower’s refusal to provide written responses or objections to Inventus’s interrogatories and 

requests for production—which were served on July 30 and due by August 20, according to the 

parties’ stipulation and Court’s order—is a violation of the “time to respond” provisions of Fed. 

R. Civ. P. 33(b) and 34(b)(2)(A). 

Not only has AcePower refused to provide the “substantive” responses it stipulated to 

provide (Dkt. 55), but it has refused to provide any written responses at all. And AcePower’s 

attempt to preempt the instant motion with a Motion for Entry of Protective Order (Dkt. 69) 

(“Motion”) does not excuse its failure to respond. AcePower’s Motion does not even specifically 

address a number of the requests, nor does it provide any of the information or agree to provide 

any of the documents sought by Inventus’s requests. Rather, AcePower’s Motion takes the 

position that Inventus’s written discovery “aims at the case-in-chief . . . not the preliminary 

injunction.” Dkt. 69 at 2. As an initial matter, this generalized, non-specific scope objection 

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provides no excuse for failing to provide the written objections or responses required by the rules 

and the Court’s orders. Buonauro v. City of Berwyn, No. 08 C 6687, 2011 WL 116870, at *4 (N.D. 

Ill. Jan. 10, 2011), on reconsideration in part, No. 08 C 6687, 2011 WL 2110133 (N.D. Ill. May 

25, 2011) (requiring defendant to respond to “the full scope of Plaintiffs’ request” where 

irrelevance objection was untimely); Wielgus v. Ryobi Techs., Inc., No. 08 CV 1597, 2010 WL 

3075666, at *3 (N.D. Ill. Aug. 4, 2010) (“JTD may not pose any objections to the interrogatories 

and requests for production of documents as those objections, if any, are considered to have been 

waived” for untimeliness); Autotech Techs. Ltd. P’ship v. Automationdirect.Com, Inc., 236 F.R.D. 

396, 398 (N.D. Ill. 2006) (“Failure to timely assert objections to discovery requests may result in 

a waiver of all objections that could have been seasonably asserted.”). Moreover, AcePower’s 

claim that Inventus’s discovery requests are not directed to its forthcoming preliminary injunction 

motion is categorically wrong. As just one example, AcePower’s Motion takes issue with 

Interrogatory Nos. 5 and 6, which relate directly to AcePower’s misappropriation and disclosure 

of Inventus’s trade secrets to customers and suppliers, as well as through AcePower’s patent 

filings, both of which are at issue in this proceeding, and were included in the parties’ TRO 

briefing. See, e.g., Dkt. 8 at 8 (customers and suppliers); id. at 8-9 (AcePower’s patents). As 

another clear example, Inventus’s Interrogatory No. 4—which AcePower fails to mention in its 

Motion at all—requests “all steps Ace has taken to comply with the Temporary Restraining Order,” 

which clearly is within the scope of expedited discovery, particularly given that AcePower filed a 

Certification of Compliance with Temporary Restraining Order (Dkt. 54). In terms of the requests 

for production, AcePower also contends that the Court’s expedited discovery is limited only to the 

inspection of “devices used by the individuals in question while working for Defendant.” Id. at 3. 

That argument is plainly incorrect, as evidenced by the fact that the parties specifically stipulated 

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to a discovery process that includes not only forensic inspection of electronic materials, but also 

interrogatories, requests for production, and more. The argument also strongly suggests that 

AcePower has no intention of providing any discovery: for instance, Inventus’s Request for 

Production No. 1 requests “Documents, Storage Devices, and/or ESI used, accessed, or accessible 

by the Ace Employees in connection with any work for or on behalf of Ace,” yet AcePower has 

not agreed to produce any materials in response to this request. 

There is no excuse for this calculated refusal to engage in expedited discovery in direct 

violation of this Court’s orders. As courts in this District have noted, “even if [a party’s incorrect 

legal arguments] were accurate (which they most certainly are not), this would not relieve [that 

party] of its duty to answer and respond to discovery.” Meyer v. S. Pac. Lines, 199 F.R.D. 610, 

615 (N.D. Ill. 2001) (granting motion to compel interrogatory responses). AcePower’s conduct is 

all the more egregious because it has not provided any responses or objections at all. Thus, 

Inventus respectfully submits that AcePower should be ordered to immediately provide substantive 

written responses and document productions requested by Inventus, within seven days of a Court 

order. See, e.g., Autotech Techs., 236 F.R.D. at 399 (ordering production of documents within 

seven days and noting that “[t]hroughout the range of the law, there are time limits imposed on 

litigants at every stage of the case . . . [and] in each instance, lawyers who do not pay heed to 

deadlines do so at substantial peril to their and their clients’ interests. Even a day’s delay can be 

fatal.”). 

B. Additional Relief Under Fed. R. Civ. P. 37 Is Warranted 

Rule 37 of the Federal Rules of Civil Procedure provides for a variety of sanctions where, 

as here, a party simply fails to answer interrogatories or respond to requests for inspection. See

Fed. R. Civ. P. 37(d). While Inventus believes it is important to be judicious in granting such relief 

in addition to compelling responses to the requests, given the extent to which AcePower has failed 

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and refused to participate in the expedited discovery granted by the Court since its new counsel 

appeared, Inventus respectfully submits that certain additional relief is warranted here including 

to ensure that AcePower does not continue to flagrantly disregard this Court’s orders and the 

Federal Rules of Civil Procedure. 

For instance, courts in this District have found that conduct similar to AcePower’s—

deliberately failing to respond or object to written discovery requests—warrants waiver of 

objections to that discovery. See, e.g., Zambrano v. Sparkplug Capital, LLC, No. 19 CV 100, 2020 

WL 1847396, at *1 (N.D. Ill. Apr. 13, 2020) (“Plaintiff waived any objections it may have had to 

Defendant’s interrogatories and requests for production of documents by not responding to either 

discovery vehicle in a timely manner.”); Trustees of the Suburban v. Bolingbrook Redi-Mix Co., 

2016 WL 1258849, at *2 (N.D. Ill. 2016) (“it is ‘well-established’ that the failure to respond and 

object within a timely manner ‘waives a subsequent assertion of objections in the absence of good 

cause.’”); Wielgus, 2010 WL 3075666, at *3 (“Because JTD has failed to timely respond to 

defendants’ interrogatories and request to produce, JTD must respond fully and completely to the 

interrogatories and request for production of documents,” but “may not pose any objections to the 

interrogatories and requests for production of documents as those objections, if any, are considered 

to have been waived.”). Likewise, AcePower should be found to have waived its objections to 

Inventus’s Interrogatories and Requests for Production, and required to immediately provide 

substantive answers with the information sought by those Interrogatories and to produce 

documents and other materials responsive to those Requests. 

Additionally, Inventus should further be awarded the reasonable attorneys’ fees it was 

forced to incur in bringing the instant motion. Fed. R. Civ. P. 37(a)(5)(A). AcePower’s conduct 

is not justified, nor is an award of fees unjust. See, e.g., Dickson, 1993 WL 362450, at *12 

Case: 1:20-cv-03375 Document #: 74 Filed: 08/24/20 Page 16 of 19 PageID #:1140
13 

(granting plaintiffs’ “attorneys’ fees incurred in gaining the order compelling discovery” where 

defendant’s argument for withholding discovery was “inadequate” and the discovery requests were 

not “excessive or burdensome”). 

At bottom, AcePower’s failure to respond to Inventus’s written discovery has prejudiced 

Inventus’s ability to prepare its forthcoming preliminary injunction motion, and violates Judge 

Dow’s order on Inventus’s motion for expedited discovery. The close of expedited discovery is 

now less than two months away, yet Inventus has not been able to acquire a single document, 

device for inspection, or discovery response from AcePower. Indeed, AcePower has explicitly 

stated that it has no intention of providing discovery responses without a Court order, despite Judge 

Dow already having entered two such orders. See Dkts. 48, 58. Such flagrant disregard for the 

orders of the Court, the Federal Rules of Civil Procedure, and AcePower’s own stipulations can 

only be dissuaded by sanctions. See, e.g., Certain Underwriters at Lloyd’s, London Subscribing 

to Policy No. BO823PP1308460 v. AdvanFort Co., No. 118CV1421TSETCB, 2019 WL 3366103, 

at *8 (E.D. Va. July 25, 2019) (finding that “Defendant’s violations are far from benign” where 

“Plaintiffs requested basic information that is central to the present dispute”); Olivet Baptist 

Church v. Church Mut. Ins. Co., No. 13 C 1625, 2015 WL 765715, at *1 (N.D. Ill. Jan. 7, 2015), 

report and recommendation adopted, No. 13 C 1625, 2015 WL 764051 (N.D. Ill. Feb. 23, 2015) 

(a party’s “lackadaisical approach to discovery is unacceptable and deserving of sanctions” where 

party, inter alia, produced discovery too late to be used in depositions, did not produce other 

promised discovery, and “obfuscated” damages claim). 

V. CONCLUSION 

For the foregoing reasons, Inventus respectfully requests that the Court order AcePower to 

provide substantive responses to Inventus’s Interrogatories and Requests for Production, without 

any objections, and to produce responsive documents, within 7 days of any order. Inventus further 

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14 

requests that the Court order the additional relief described in Section IV.B above, and/or any other 

sanctions the Court deems appropriate under Fed. R. Civ. P. 37. 

DATED: August 24, 2020 Respectfully submitted, 

/s/ Gianni Cutri 

Gianni Cutri 

Gianni.cutri@kirkland.com 

KIRKLAND & ELLIS LLP 

300 North LaSalle 

Chicago, IL 60654 

Telephone: (312) 862-2000 

Facsimile: (312) 862-2200 

Adam Alper (admitted pro hac vice) 

adam.alper@kirkland.com 

Natalie Flechsig (admitted pro hac vice) 

natalie.flechsig@kirkland.com 

KIRKLAND & ELLIS LLP 

555 California Street 

San Francisco, CA 94104 

Telephone: (415) 439-1400 

Facsimile: (415) 439-1500 

Michael De Vries (admitted pro hac vice) 

michael.devries@kirkland.com 

Kevin Bendix (admitted pro hac vice) 

kevin.bendix@kirkland.com 

Yimeng Dou (admitted pro hac vice ) 

yimeng.dou@kirkland.com 

KIRKLAND & ELLIS LLP 

555 South Flower Street 

Los Angeles, CA 90071 

Telephone: (213) 680-8400 

Facsimile: (213) 680-8500 

Attorneys for Plaintiffs 

INVENTUS POWER, and ICC 

ELECTRONICS (DONGGUAN) LTD. 

Case: 1:20-cv-03375 Document #: 74 Filed: 08/24/20 Page 18 of 19 PageID #:1142
CERTIFICATE OF SERVICE 

I, Gianni Cutri, an attorney, hereby certify that on August 24, 2020, I caused a true and 

correct copy of the foregoing document to be served via the Court’s ECF system upon all counsel 

of record.

DATED: August 24, 2020 /s/ Gianni Cutri

 Gianni Cutri 

Case: 1:20-cv-03375 Document #: 74 Filed: 08/24/20 Page 19 of 19 PageID #:1143