UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

DIRTT Environmental Solutions, Ltd., and ) 

 ) 

DIRTT Environmental Solutions, Inc., ) 

 ) Case No. 20-cv-4637 

 ) 

 v. ) Hon. Steven C. Seeger 

 ) Hon. Magistrate Judge Gabriel A. Fuentes 

Falkbuilt, Ltd., ) 

 ) 

 

PLAINTIFFS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO COMPEL 

AND FOR ENTRY OF SCHEDULING ORDER

 

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TABLE OF CONTENTS 

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

II. BACKGROUND .................................................................................................................1

A. Falkbuilt's Deficient Discovery Responses ..........................................................................1

B. Rule 26(f) Conference and Report .......................................................................................3

III. THE COURT SHOULD COMPEL FALKBUILT TO SUPPLEMENT ITS DEFICIENT 

DISCOVERY RESPONSES AND PRODUCE THE DOCUMENTS IT AGREED TO 

PRODUCE ...........................................................................................................................4

A. Falkbuilt's Incomplete Answers to Interrogatory Nos. 1, 2, 8, and 11. ...............................5

B. Falkbuilt's Improper Objections to Producing Documents Responsive to Request for 

Production Nos. 2, 8, 11, 22, 24, 31, and 32. .......................................................................7

C. Falkbuilt's Improper Delay in Producing Documents Responsive to Request Nos. 6, 7, 9, 

14, 15, 16, 21, and 23 .........................................................................................................10

IV. DIRTT'S MOTION FOR ENTRY OF A RULE 26(F) REPORT AND CASE 

SCHEDULE .......................................................................................................................10

V. CONCLUSION ..................................................................................................................12

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I. INTRODUCTION 

Plaintiffs DIRTT Environmental Services, Ltd. and DIRTT Environmental Services, Inc. 

("DIRTT" or "Plaintiffs") bring this motion in an effort to bring Defendant Falkbuilt Ltd. 

("Falkbuilt" or "Defendant") into compliance with the Federal Rules of Civil Procedure. This is a 

patent case stemming from a group of employees leaving one company (DIRTT) and starting 

another (Falkbuilt) using the same intellectual property that had proven successful at DIRTT. The 

companies both design and build interiors for, e.g., offices, hospitals, and schools. At issue here 

is technology that enables customers for DIRTT and Falkbuilt's products to design, review, and 

revise interiors. Both parties promote the availability of such technology to drive sales and win 

business opportunities. 

The patents at issue in this case were invented by DIRTT employees, including Barry 

Loberg, a founder of Falkbuilt. Loberg and the other DIRTT inventors made statements to DIRTT 

and to the U.S. Patent Office that the technology in question was new, useful, and wasn't obvious. 

Now that he wishes to compete with DIRTT under the banner of a new company, Loberg and 

Falkbuilt have changed their views about the patents asserted in this case. 

II. BACKGROUND 

DIRTT filed its original Complaint alleging Falkbuilt's Echo Dome system infringes U.S. 

Pat. No. 10,467,814 ("the '814 patent") on August 6, 2020. Dkt. No. 1. DIRTT filed its First 

Amended Complaint, which alleges that Falkbuilt's Echo Dome system infringes both the '814 

patent and U.S. Pat. No. 10,783,284 ("the '284 patent") (together "the Asserted Patents"), on 

November 13, 2020. Dkt. No. 25. 

A. Falkbuilt's Deficient Discovery Responses 

The parties served their Initial Disclosures under the Local Patent Rules for the '814 patent 

on Nov. 6, 2020 and the '284 patent on Dec. 11, 2020. Dkt. No. 48 at pp. 1-2; Ex. A; Ex. B. Thus, 

pursuant to Local Patent Rule ("LPR") 1.3, fact discovery opened on Dec. 11, 2020. DIRTT served 

Plaintiffs' First Set of Requests for Production of Documents and Things to Falkbuilt, Ltd. (Nos. 

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1-33) and Plaintiffs' First Set of Interrogatories to Falkbuilt, Ltd. (Nos. 1-11) (together "DIRTT's 

Discovery Requests") on Dec. 21, 2020. Ex. A; Ex. B. Falkbuilt has not served written discovery 

requests in this case. 

Falkbuilt initially took the position that discovery was not open and did not serve 

Defendant Falkbuilt Ltd.'s Objections and Responses to Plaintiffs' December 21, 2020, Requests 

for Production and Defendant Falkbuilt Ltd.'s Objections and Responses to Plaintiffs' December 

21, 2020, Interrogatories (together "Falkbuilt's Responses") to DIRTT's Discovery Requests until 

February 22, 2021. Ex. C; Ex. D; Ex. E, Email from Bowland dated Feb. 3, 2021. 

Falkbuilt's Responses were deficient in almost all respects. First, despite agreeing to do so 

in response to several of DIRTT's requests for production, including Request Nos. 6, 7, 9, 14, 15, 

16, 21, and 23, Falkbuilt did not produce, and as of today's date has not produced, any additional 

documents1 responsive to those documents. Ex. F, Correspondence from Sendek dated Mar. 2, 

2021; Ex. G, Email from Bowland dated Mar. 23, 2021. Additionally, Falkbuilt refused, and 

continues to refuse, to provide substantive and/or complete answers to Interrogatory Nos. 1, 2, 8, 

and 11. Id. Falkbuilt's Responses to Request for Production Nos. 2, 8, 11, 22, 24, 31, and 32 also 

improperly refused to produce documents within Falkbuilt's care, custody, or control.2 Id. DIRTT 

sent a letter to Falkbuilt enumerating these deficiencies on March 2, 2021. Ex. F. Falkbuilt did 

not respond to this correspondence. 

The parties held meet and confers regarding Falkbuilt's Responses on March 22, 2021 and 

May 10, 2021. Ex. G. Before each meet and confer, Falkbuilt refused to participate until DIRTT 

threatened to file a motion with the Court which would note that Falkbuilt would not participate 

1

 Falkbuilt's document production to date comprises alleged prior art and the deficient source code 

production at issue in DIRTT's pending motion to compel (Dkt. No. 47). 

2

 Request for Production No. 8 seeks an inspection of all of the Accused Product Source Code. 

Falkbuilt's response to Request for Production No. 8 was that it had already made such source code 

available for inspection. As the Court is aware from DIRTT's motion to compel on this subject, it 

is DIRTT's position that Falkbuilt did not make all such source code available for inspection.

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in the meet and confer process. Id. Falkbuilt's continued refusals to meet and confer significantly 

delayed DIRTT's attempts to resolve these issues without the Court's assistance. 

During the meet and confer on March 22, 2021, Falkbuilt stated that it would supplement 

its deficient Responses but would or could not specify which Responses it would supplement. Ex. 

G, Email from Bowland dated Mar. 23, 2021. Additionally, Falkbuilt would not provide a date by 

which it would supplement its deficient Responses, claiming that its discovery responses were not 

urgent because Falkbuilt had filed a Motion to Stay. Similarly, Falkbuilt refused to provide a date 

by which it would produce documents responsive to DIRTT's Discovery Requests to which 

Falkbuilt had not objected. Id. Although DIRTT attempted to go through the deficiencies noted 

in its March 2, 2021 letter individually, Falkbuilt was either unable or unwilling to do so. Id. 

Eventually, Falkbuilt took the position that it would not supplement its Responses or produce 

documents unless and until the Court denied its Motion to Stay. Id. During the meet and confer 

Falkbuilt did confirm, however, that it was not withholding discovery based on its objection to 

DIRTT's definition of "Accused Product." Id. 

During the meet and confer on May 10, 2021, DIRTT again requested a date by which 

Falkbuilt would provide its promised supplemented discovery responses and discovery to address 

Falkbuilt’s deficient Responses to DIRTT’s Discovery Requests served on December 21, 

2020. Falkbuilt refused to provide a date certain for such supplementation beyond the date for 

“close of fact discovery.” 

B. Rule 26(f) Conference and Report 

Falkbuilt requested a Rule 26(f) conference, proposed case schedule, and discovery plan 

from DIRTT on Dec. 2, 2020. Ex. H, Email from Gerasimow dated Dec. 2, 2020. DIRTT provided 

a draft Rule 26(f) Report and proposed case schedule on Dec. 8, 2020. Ex. H, Email from Bowland 

dated Dec. 8, 2020. The parties then set a Rule 26(f) Conference for Dec. 17, 2020. Ex. H, Email 

from Bowland dated Dec. 10, 2020. However, during that conference Falkbuilt objected to 

considering it a Rule 26(f) conference for the stated reason that Falkbuilt did not wish discovery 

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to commence and that the Court had not set a Rule 16(b) conference. Ex. H, Email from Bowland 

dated Dec. 17, 2020. Because Falkbuilt would not provide its own redlines, DIRTT provided a 

revised draft Rule 26(f) Report on Jan. 14, 2021 as one of Falkbuilt's conditions to participating in 

a Rule 26(f) conference. Eventually, the Rule 26(f) Conference occurred February 1, 2021. Ex. 

G, Email from Bowland dated Feb. 3, 2021. Falkbuilt again objected to the draft report but refused 

to provide redlines. DIRTT provided the revised draft Rule 26(f) Report on February 3, 2021. Ex. 

Id. As of the date of this filing, Falkbuilt has not provided a redlined or revised version of the Rule 

26(f) Report. 

The parties also held meet and confers regarding Falkbuilt's failure and/or refusal to 

continue the Rule 26(f) process by providing a revised or marked up version of the draft Rule 26(f) 

Report on March 22, 2021 and May 10, 2021. Ex. G. As noted above, Falkbuilt initially refused 

to participate in the meet and confer process before both meet and confers. Id. Falkbuilt's 

continued refusals to meet and confer significantly delayed DIRTT's attempts to finalize the Rule 

26(f) process. During the meet and confers, Falkbuilt insisted that DIRTT make revisions to 

DIRTT's statements of its legal positions in the draft Rule 26(f) Report because they constituted 

"misstatements of fact." DIRTT pointed out that it was inappropriate to condition providing 

redlines to the draft Report on such a request. Falkbuilt insisted it would only provide redlines to 

the draft Rule 26(f) Report if DIRTT revised the positions with which Falkbuilt took issue. DIRTT 

refused to so because the demand was improper. 

III. THE COURT SHOULD COMPEL FALKBUILT TO SUPPLEMENT ITS 

DEFICIENT DISCOVERY RESPONSES AND PRODUCE THE DOCUMENTS IT 

AGREED TO PRODUCE 

DIRTT is entitled to answers and responses to DIRTT's Discovery Requests because the 

discovery sought is relevant and proportional to its needs in the case. 

Unless otherwise limited by court order, the scope of discovery is as follows: 

Parties may obtain discovery regarding any nonprivileged matter that is relevant to 

any party's claim or defense and proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or 

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expense of the proposed discovery outweighs its likely benefit. Information within 

this scope of discovery need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1). Moreover, it is improper for Falkbuilt to delay supplementing its deficient 

discovery responses until "the end of fact discovery"—it is required to make such disclosures in a 

timely manner. 

A party who has made a disclosure under Rule 26(a)—or who has responded to an 

interrogatory, request for production, or request for admission—must supplement 

or correct its disclosure or response: (A) in a timely manner if the party learns that 

in some material respect the disclosure or response is incomplete or incorrect, and 

if the additional or corrective information has not otherwise been made known to 

the other parties during the discovery process or in writing; or (B) as ordered by the 

court. 

Fed. R. Civ. P. 26(e). Falkbuilt has had two months to consider and respond substantively to 

DIRTT's letter outlining Falkbuilt's Responses' numerous deficiencies. It has not done so. 

Falkbuilt is aware that its Responses are incomplete or inaccurate and that it has improperly 

withheld discovery DIRTT is entitled to pursuant to Rule 26. Moreover, Falkbuilt's abject refusal 

to properly answer DIRTT's Discovery Requests and produce documents has caused DIRTT 

severe prejudice by denying it documents directly relevant to the Accused Products, infringement, 

DIRTT's invalidity defenses, and damages. The Court should order Falkbuilt to fully respond to 

DIRTT's Discovery Requests, including producing documents, immediately. 

A. Falkbuilt's Incomplete Answers to Interrogatory Nos. 1, 2, 8, and 11. 

Falkbuilt either failed to or refused to provide, based on dubious objections, complete 

Answers to Interrogatory Nos. 1, 2, 8, and 11. As discussed below, each Interrogatory seeks 

discoverable information under Rule 26 that is relevant to the claims and defenses of the parties. 

Falkbuilt, despite having ample opportunity to do so via correspondence or the parties' meet and 

confers, has not disputed or otherwise contested DIRTT's position that these Interrogatories seek 

discoverable information and that Falkbuilt must supplement them. The Court should order 

Falkbuilt to supplement its deficient Answers to these Interrogatories with complete answers. 

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Interrogatory No. 1 

Interrogatory No. 1 requests information directly relevant to the Asserted Patents, i.e. the 

background, education, work experience, expertise, and other characteristics of a person or 

ordinary skill in the art. Ex. B at p. 3. This information is fundamental to issues of claim 

construction (which underlies infringement and validity issues) relevant to this case. Falkbuilt 

objected to this interrogatory as seeking "premature expert discovery." Ex. D at p. 5. This is 

incorrect and improper. The definition of a person of ordinary skill in the art is the not the 

exclusive provenance of expert witnesses, and the requested information is directly relevant to the 

claims and issues in this matter. A party cannot avoid providing timely discovery by claiming it 

will come from an expert later. If such were the case, then the deadlines in the Local Patent Rules 

calling for contentions as to infringement and validity could be easily sidestepped. The Court 

should order Falkbuilt to supplement its Response to Interrogatory No. 1 and substantively answer 

the Interrogatory. 

Interrogatory No. 2 

Interrogatory No. 2 requests information directly relevant to the Accused Products and 

infringement of the Asserted Patents by the Accused Products. The Interrogatory asks for detailed 

description of the design, research, development, testing, and operation of the Accused Products. 

Ex. B at p. 3. Falkbuilt objected to this Interrogatory by claiming that DIRTT has not identified 

the Accused Products with specificity. Ex. D at pp. 5-6. However, during the parties' meet and 

confer on March 22, 2021, counsel for Falkbuilt stated that Falkbuilt was not withholding 

discovery based on its objection to DIRTT's definition of "Accused Products." Ex. G, Email from 

Bowland dated Mar. 23, 2021. As discussed in Plaintiffs' Reply in Support of Their Motion to 

Compel and For Protective Order, DIRTT has sufficiently identified the Accused Products. Dkt. 

No. 57 at p. 3 (identifying Accused Product by name is sufficient to identify the Accused Products). 

The Court should order Falkbuilt to supplement its Response to Interrogatory No. 2 and provide 

the requested detailed description. 

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Interrogatory No. 8 

Interrogatory No. 8 seeks information directly relevant to infringement and damages, an 

identification of each customer or prospective customer Falkbuilt has presented, used, or offered 

the Accused Products. Ex. B at p. 4. In other words, Interrogatory No. 8 seeks information 

regarding actual infringement. Falkbuilt objected to this request on the basis that it was not 

relevant and unduly burdensome. Ex. D at p. 9. Given that evidence of use or offer of an infringing 

product is undeniably relevant to a claim of patent infringement, Falkbuilt must provide a 

substantive response to this Interrogatory. Notably, Falkbuilt has never specified the "undue 

burden" its objection references. The Court should order Falkbuilt to supplement its Response to 

Interrogatory No. 8 and substantively answer the Interrogatory. 

Interrogatory No. 11 

Interrogatory No. 11 seeks information regarding an identification of the owners of 

Falkbuilt, an inquiry directly relevant to DIRTT's assertion of assignor estoppel in the above 

captioned matter. Ex. B at p. 4. Falkbuilt has objected solely on the basis of relevance and "undue 

burden." Ex. D at pp. 10-11. Given that the information is relevant to one of DIRTT's defenses 

to Falkbuilt's invalidity claims (DIRTT argues that a company founded by an inventor is estopped 

from challenging the underlying patent under the doctrine of assignor estoppel), and that it would 

not be burdensome for Falkbuilt to determine who owns Falkbuilt, the Court should order Falkbuilt 

to supplement its Response to Interrogatory No. 11 and substantively answer the Interrogatory. 

B. Falkbuilt's Improper Objections to Producing Documents Responsive to 

Request for Production Nos. 2, 8, 11, 22, 24, 31, and 32. 

Falkbuilt improperly objected to producing documents responsive to Request for 

Production Nos. 2, 8, 11, 22, 24, 31, and 32. As discussed below, each Request for Production 

seeks discoverable information under Rule 26 that is relevant to the claims and defenses of the 

parties. Falkbuilt has not disputed or otherwise contested DIRTT's position that these 

Interrogatories seek discoverable information and that Falkbuilt must supplement them. The Court 

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should order Falkbuilt to supplement its deficient Responses to these Requests for Production and 

produce responsive documents. 

Request for Production No. 2 

Request No. 2 seeks all documents and things in referring, relating, discussing, or otherwise 

concerning DIRTT. Ex. A at p. 4. This information is relevant to the above-captioned matter 

because it is relevant to DIRTT's claims of patent infringement in this matter, particularly with 

respect to Falkbuilt's knowledge of DIRTT's business and the ICE system. Moreover, this Request 

is relevant to DIRTT's infringement claim because it may provide information regarding 

Falkbuilt's knowledge of the Asserted Patents in this matter. The Court should order Falkbuilt to 

amend its Response to Request for Production No. 2 and produce non-privileged documents in its 

care, custody, or control responsive to this request. 

Request for Production No. 8 

Request No. 8 seeks all source code for the Accused Products. Ex. A at p. 5. As the Court 

is aware from DIRTT's motion to compel on this subject, Falkbuilt did not make all such source 

code available for inspection. The Court should order Falkbuilt to supplement its source code 

production and make all source code for the Echo Dome system available for inspection. 

Request for Production No. 11 

Request No. 11 seeks communications with customers and potential customers regarding 

the Accused Products. Ex. A at p. 5. This information is directly relevant to DIRTT's infringement 

claims in this matter, as it is likely to show the use, sale, or offer for sale of the Accused Products. 

The Court should order Falkbuilt to amend its Response to Request for Production No. 11 and 

produce non-privileged documents in its care, custody, or control responsive to this request. 

Request for Production No. 22 

Request No. 22 seeks documents and thing referring or relating to advantages, 

disadvantages, features or characteristics of the Accused Productions. Ex. A at p. 7. This 

information is directly relevant to DIRTT's infringement claims, as it seeks information regarding 

the Echo Dome system, the product accused of infringing DIRTT's patents in this lawsuit. The 

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Court should order Falkbuilt to amend its Response to Request No. 22 and produce non-privileged 

documents in its care, custody, or control responsive to this Request. 

Request for Production No. 24 

Request No. 24 seeks documents sufficient to identify all customers or prospective 

customers to whom Defendant has presented the Accused Products. Ex. A at p. 7. This 

information is directly relevant to DIRTT's infringement claims, as it seeks information regarding, 

inter alia, the use of the Echo Dome system, the Accused Product in this lawsuit. The Court should 

order Falkbuilt to amend its Response to Request No. 24 and produce non-privileged documents 

in its care, custody, or control responsive to this Request. 

Request for Production No. 31 

Request for Production No. 31 seeks contracts or agreements between Falkbuilt and any 

persons specifically identified in the parties' Initial Disclosures. Ex. A at p. 8. This information 

is relevant to the claims and defenses of the parties in the above-captioned matter because the 

individuals identified in the parties' Initial Disclosures have, by definition, information relevant to 

the claims and defenses of the parties, and contracts or agreements between them and Falkbuilt 

may provide information regarding, inter alia, the development of the Accused Products and 

ownership of Falkbuilt. Additionally, these individuals are likely to be deposed in this matter and 

contracts or agreements between them and Falkbuilt may provide evidence of bias toward or 

against Falkbuilt. The Court should order Falkbuilt to amend its Response to Request No. 31 and 

produce non-privileged documents in its care, custody, or control responsive to this Request. 

Request for Production No. 32 

Request for Production No. 32 seeks documents reflecting correspondence or 

communications with third parties regarding DIRTT, the Asserted Patents, the Accused Products, 

and litigation or other legal proceedings involving the Asserted Patents. Ex. A at pp. 8-9. This 

information is directly relevant to DIRTT's infringement claims because it provides information 

regarding the Asserted Patents and the Accused Products. The Court should order Falkbuilt to 

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amend its Response to Request No. 32 and produce non-privileged documents in its care, custody, 

or control responsive to this Request. 

C. Falkbuilt's Improper Delay in Producing Documents Responsive to Request 

Nos. 6, 7, 9, 14, 15, 16, 21, and 23 

Although Falkbuilt agreed to produce documents responsive to Document Request Nos. 6, 

7, 9, 14, 15, 16, 21, and 23, to date Falkbuilt has produced no additional documents. Ex. C at pp. 

9-11, 12-13, 17-18, 21-23; Ex. F. In other words, Falkbuilt has not produced one document in 

response to DIRTT's Discovery Requests. Moreover, as discussed above, Falkbuilt refuses to 

provide any date by which these documents will be produced beyond "the close of fact discovery." 

Falkbuilt has provided no justification for failing to timely produce documents responsive to 

DIRTT's Discovery Requests. The Court should order Falkbuilt to produce any documents 

responsive to Document Request Nos. 6, 7, 9, 14, 15, 16, 21, and 23 in Falkbuilt's care, custody, 

or control immediately. 

IV. DIRTT'S MOTION FOR ENTRY OF A RULE 26(F) REPORT AND CASE 

SCHEDULE 

As discussed above, although DIRTT has provided three draft Rule 26(f) Reports, Falkbuilt 

has refused to provide any redlines to those drafts or provide drafts of Falkbuilt's positions to be 

submitted as part of the Rule 26(f) Report. Instead, Falkbuilt is insisting that DIRTT amend 

DIRTT's legal positions (because they are allegedly "misstatements of fact") before Falkbuilt will 

work on the Rule 26(f) Report at all. Ex. E; Ex. G. In other words, Falkbuilt is holding the entire 

Rule 26(f) process hostage in an attempt to force DIRTT to alter its legal positions. This is 

improper and contrary to the spirit of the Rule 26(f) process. If the parties have competing legal 

positions (and they do), those positions should be outlined separately in the Rule 26(f) Report. 

One party should not derail the entire process due to such disagreements. Moreover, it is unclear 

why Falkbuilt would not redline any provisions that it finds objectionable or (as is common in 

preparing Rule 26(f) reports) provide a competing contention. Indeed, DIRTT has suggested more 

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than once that Falkbuilt do just that. Ex. G, Emails from Bowland dated Apr. 26, 2021 and May 

4, 2021. 

A review of Falkbuilt's alleged "misstatements of fact" in the draft Rule 26(f) Report, which 

during the parties' last meet and confer Falkbuilt identified on page 7 of its Reply to its Motion to 

Stay (Dkt. No. 66), shows just how untenable Falkbuilt's position is. 

First, Falkbuilt takes issue with DIRTT's own description of the case it brought. Dkt. No. 

66 at p. 7. DIRTT has alleged that Falkbuilt infringes claims 1-7, 10-16, and 19-20 of the '814 

patent and claims 1, 4, 5, 8-12, 15 and 16 of the '284 patent. As is common in patent cases, DIRTT 

first identified exemplary claims in its complaint, then provided contentions as to dependent claims 

in the contention process. Falkbuilt has answered and responded stating that it does not believe it 

infringes those claims. A Rule 26(f) report is not the appropriate vector to resolve whether in fact 

the claims are infringed, or even to provide any separate scheduling concerns for one claim versus 

another. 

Falkbuilt also claims that the statement that DIRTT alleges that the Accused Products 

infringe the Asserted Patents under 35 U.S.C. § 271(f) is a misstatement of fact. Dkt. No. 66 at p. 

7. But DIRTT does so allege, even if Falkbuilt again thinks DIRTT is wrong or has no right to so 

allege. This is not a misstatement of fact—rather it is a legal disagreement between the parties, 

and one where again holding up a Rule 26(f) report is not the appropriate method to resolve the 

disagreement. Falkbuilt can provide a counter-position that DIRTT is wrong, but it is not proper 

for Falkbuilt to attempt to force DIRTT to change a legal position by stonewalling the Rule 26(f) 

process. 

Finally, Falkbuilt also claims that Plaintiff's Statement that DIRTT has not been permitted 

access to the Accused Product's source code is a misstatement of fact. Dkt. No. 66 at p. 7. Again, 

this is a disagreement between the parties and their positions, not a misstatement of fact. As both 

the Court and Falkbuilt know, it is DIRTT's position that it has not been granted reasonable access 

to the entire source code for the Accused Products. Indeed, DIRTT has filed a Motion to Compel 

on this very topic. Dkt. Nos. 47, 48. By refusing to continue the Rule 26(f) process unless DIRTT 

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amends its statement regarding source code, Falkbuilt is attempting to avoid producing all of the 

source code for the Accused Product. This is improper, and certainly does not comport with the 

spirit of the Rule 26(f) planning process. Once again, if Falkbuilt disagrees about DIRTT's position 

with respect to production and inspection of the source code, it can provide its position in the Rule 

26(f) Report. 

As discussed above, Falkbuilt's refusal to continue with the Rule 26(f) process (despite 

having a draft Rule 26(f) Report in its possession for over three months now), is improper. 

Moreover, it is just one more in a long line of obvious delay tactics employed by Falkbuilt to 

disrupt the timely resolution of this matter. Indeed, Falkbuilt's refusal to provide discovery, along 

with its refusal to participate in the Rule 26(f) process, has effectively ground this case to a 

standstill. 

Falkbuilt has refused do virtually anything with respect to this litigation, including 

participating in meet and confers absent DIRTT's threats to seek the Court's assistance. Based on 

Falkbuilt's conduct thus far, DIRTT does not believe it intends to actually participate in the Rule 

26(f) process. Thus, DIRTT respectfully submits its Rule 26(f) Report and proposed Case 

Schedule, attached hereto as Ex. I, and requests that the Court enter a Scheduling Order consistent 

with that document. In the alternative, DIRTT respectfully requests the Court order Falkbuilt to 

participate in the Rule 26(f) process and set a deadline for the parties to submit a Rule 26(f) Report 

and proposed case schedule. 

V. CONCLUSION 

For the foregoing reasons, DIRTT respectfully requests that the Court (1) compel Falkbuilt 

to fully respond to DIRTT's Discovery Requests and (2) enter DIRTT's proposed Scheduling 

Order. 

Dated: May 14, 2021 Respectfully Submitted, 

By: /s/Rubén Castillo 

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Attorneys for Plaintiffs 

Rubén Castillo 

Timothy K. Sendek 

Robyn M. Bowland 

Akerman LLP 

71 S. Wacker Drive, 47th Floor 

(312) 634-5700 

ruben.castillo@akerman.com 

tim.sendek@akerman.com 

robyn.bowland@akerman.com 

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