Case 1:22-cv-00311-WCB Document 293 Filed 12/05/23 Page 1 of 5 PageID #: 18107
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-311 (WCB)
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`REDACTED - PUBLIC VERSION
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`) ) ) ) ) ) ) ) )
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
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`MOTIF FOODWORKS, INC., and GINKGO
`BIOWORKS, Inc.,
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`Defendants.
`
`RESPONSIVE LETTER FROM JEREMY A. TIGAN IN OPPOSITION TO
`PLAINTIFF’S LETTER SEEKING AN ORDER COMPELLING PRODUCTION OF
`SAMPLES AND SUPPLEMENTATION OF INTERROGATORY RESPONSE
`
`OF COUNSEL:
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L.
`Haberny Sarah
`Cork Razmig
`Messerian Patrick
`T. Schmidt
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`865 South Figueroa
`Street 10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Q. Wood
`Trevor J. Quist
`Derek A. Huish
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`November 20, 2023
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`Lucinda C. Cucuzzella (#3491)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
`ccucuzzella@morrisnichols.com
`
`Sandy Shen
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor,
`New York, NY 10010
`(212) 849-7000
`
`Attorneys for Defendant Motif FoodWorks, Inc.
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`

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`Case 1:22-cv-00311-WCB Document 293 Filed 12/05/23 Page 2 of 5 PageID #: 18108
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`Impossible is not entitled to the requested discovery relief. First, Motif has already
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`produced samples of every product—commercial or prototype—that Motif was able to locate.
`More than that: Motif produced samples of every relevant ingredient that Motif was able to locate.
`Motif does not possesses any additional samples, and Impossible provides no reason to believe
`otherwise. Second, regarding Interrogatory No. 18, Impossible has failed to articulate with any
`specific deficiency in light of the multi-page detailed narrative that Motif already provided to
`Impossible, or the 80+ documents Motif identified to Impossible.
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`I.
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`Motif Never “Represented” It Had
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` Accused Products
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`
`
`
`
`. Ex. C. Yet, Impossible’s
`infringement contentions broadly accused any products containing heme protein, “including
`without limitation” the products that Motif has ever made, used, or sold. Ex. A at 2. In response,
`per its obligations, Motif produced core technical documents in its possession pertaining to
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`products containing heme proteins. Contrary to Impossible’s suggestion, however, the mere
`production of technical documents in its possession was not a “representation” by Motif that it
`necessarily made, sold, or even ever had possession, of the reflected products. Compare D.I. 264
`at 3 (Impossible claim: “Eight months ago, Motif represented that it had
` products.”).
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`Impossible accuses Motif of “needlessly complicat[ing] discovery” and “wast[ing] party
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`and Court resources,” D.I. 264 at 3, but it is actually Impossible who is to blame. It was Impossible
`who made the unwarranted assumption that products existing only on paper somehow implied
`mass infringement and used the assumption to indiscriminately accuse
` products in its final
`infringement contentions. And, as shown below, Impossible now refuses to accept Motif’s
`representations regarding the actual facts pertaining to these products.
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`II. Motif Has Provided Full Transparency, Including All Existing Samples
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`On May 26, Impossible propounded Interrogatory 18, asking Motif to “identify and
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`describe each instance in which each such Accused Instrumentality has been made, used, sold,
`offered for sale, or imported into the United States.” Ex. B at 9-10. In its initial and later-
`supplemental response, served September 29, Motif provided full transparency regarding the
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`accused products. As Motif explained,
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`. Ex. C at 20. Samples of those
`products were promptly been produced to Impossible in June 2023, and ingredients were later
`produced in response to Impossible’s request which was first received on August 16, 2023.
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`Motif’s interrogatory response also noted it had
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`. Ex. C at 21. Motif also reconstructed, to the best of its
`ability, a detailed historical record of its prior public distribution of products and prototypes. Ex.
`C at 23. However, as Motif initially told Impossible in good-faith,
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`, though its
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` to Impossible. At the same time, Motif located
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`investigation was continuing. A few weeks later, Motif located
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`1
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`Case 1:22-cv-00311-WCB Document 293 Filed 12/05/23 Page 3 of 5 PageID #: 18109
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` Motif itself had never created or distributed, and produced those
`to Impossible as well. As Motif’s supplemental response to Interrogatory 18 makes clear, these
` were “not under development,” were “not, nor ever have been, offered
`for sale,” and were only manufactured
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` Id. at 22. Motif does not possesses samples of
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`.1
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`Impossible’s letter brief levels serious allegations at Motif’s discovery responses—e.g.,
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`that Motif is trying “to avoid an infringement adjudication and discovery obligations” for certain
`products.2 D.I. 264 at 3. These allegations are baseless. As Impossible knows, Motif only ever
`advertised and sold
`. And, Impossible has been on
`notice that samples of all
` products did not exist for nearly six months, when Motif explained
`the issue to Impossible in correspondence. Ex. D at 1. That said, Motif is in the business of
`developing alternative foodstuffs,
`. That is
`why Motif’s discovery shows it
`, has
`samples of products produced by third-parties, and has documentation for products that it never
`produced or possessed at all.
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`In sum, Impossible fails to show that Motif’s provided discovery responses are
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`questionable or insufficient in any way.3 Impossible, of course, is free to continue to investigate
`the issue of the prototype products by beginning to take depositions of Motif and its employees.
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`II.
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`Impossible Is Not Entitled To The Discovery Relief It Seeks
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`Stripped of its rhetoric, Impossible’s letter brief asks for two things: (1) “a description of
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`the details of the making, using, selling, offering for sale, and/or importation of the infringing
`products”; and (2) samples of the remaining prototype products and their ingredients.
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`
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`A.
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`Impossible Is Not Entitled To A Further Response To Interrogatory No. 18
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`Motif provided a long and detailed response to Interrogatory No. 18 that provides the
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`details of its commercialized products, and reconstructs the history of past manufacture and
`distribution
`, including distribution
`.
`Motif has further identified 81 documents pursuant to Fed. R. Civ. P. 33(d) that provided additional
`information regarding occasions on which Accused Products had been made and for what
`purposes. Ex. C at 22-24. Motif will, of course, continue to supplement its response to
`Interrogatory No. 18 when, and if, new information becomes available. To date, however,
`Impossible has failed to adequately explain how Motif’s response to this interrogatory is deficient.
`
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`1 In an effort to paint Motif’s discovery responses as “questionable,” Impossible cites
`“screenshots” of videos from a tradeshow showing a
`. This is a red
`herring. These videos were taken at industry trade shows involving many alternative foodstuff
`companies, and there is no suggestion in the videos that the videoed products were Motif products.
`Motif told Impossible this weeks ago during a meet and confer and believed the issue to be settled.
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`2 Impossible insinuates that Motif’s product documentation is “sparse.” It should be noted that
`Motif has produced 565,000+ pages of discovery in this case—over twice as much as Impossible.
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`3 Motif summarized the complete status of its sample production in correspondence. Ex. E at 2.
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`2
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`Case 1:22-cv-00311-WCB Document 293 Filed 12/05/23 Page 4 of 5 PageID #: 18110
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`Unsatisfied with this response, Impossible demands information regarding each and every
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`instance in which any one of the
` accused products were ever manufactured, not just by Motif
`but also by third-parties. DI 264 at 3 (“Impossible is entitled to know when—if ever—Motif (or
`its agents) has actually made these products.”). This demand is not reasonable or proportionate.
`For example, it is extremely burdensome—if not impossible—for Motif to recount each and every
`instance in which a non-commercial product was experimentally created, even for strictly internal
`purposes. Nevertheless, Motif has endeavored to describe the instances in which these prototype
`products were distributed publicly in an effort to provide Impossible with a fair and reasonable
`picture of the limited scope and scale of these non-commercial uses. While Impossible has claimed
`that the details of each and every single allegedly infringing “use” is relevant, it has not proffered
`a damages theory aimed at uses that are purely internal and experimental. Nor has it identified
`how such uses could cause it irreparable harm for purposes of an injunction.
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`Even more unreasonable is Impossible’s demand that Motif describe the details of
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`manufacture of
`. Impossible
`has not articulated any factual basis for imputing liability for any such
` to
`Motif, or even for believing that Motif would be in a possession of such information. Notably,
`Impossible has recently served a subpoena on
`.
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`B. Motif Cannot Produce Samples It Does Not Possess
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`Impossible continues to demand production of “samples.” Impossible has not told the
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`Court, much less Motif, what samples it wants. As explained above, Motif has already produced
`samples of every relevant product in its possession, custody or control. Motif can only infer that
`Impossible wants samples that do not presently exist, and which Motif is not obligated to create.
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`Impossible cannot force Motif to create products that do not already exist. See Fed. R. Civ.
`
`P. 34(a)(1); Mon River Towing, Inc. v. Indus. Terminal & Salvage Co., No. CIV 06-01499, 2008
`WL 2412946, at *1 (W.D. Pa. June 10, 2008) (“Rule 34 does not require a party to create or
`generate responsive materials (in this case, documents) but only to produce and allow inspection
`of ‘items in the responding party’s possession, custody or control.’” (citation omitted)). And the
`cases Impossible cites are inapposite. Invensas involved the propriety of discovery into “unaccused
`products,” and the Court still only ordered that the defendant produce samples of certain products
`it made, sold, or offered for sale in the United States. Invensas Corp. v. Renesas Elecs. Corp., 287
`F.R.D. 273, 286-87 (D. Del. 2012). The court in Caterpiller likewise only required the defendant
`to “make available for purchase” a large tractor accused of infringement, which was already made
`and sold by the defendant, for purposes of testing by the plaintiff. See Caterpillar, Inc. v. Deere &
`Co., No. 96 C 5355, 1997 WL 399627, at *2-3 (N.D. Ill. July 11, 1997).
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`Impossible’s assertion (D.I. 264 at 2-3) that Motif has misrepresented the availability of or
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`failed to produce samples of Accused Products it has publicly distributed during this lawsuit is
`inaccurate, and not well taken. As described above, Motif did not initially locate
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`, but later found and promptly produced samples as soon
`. There was no “misrepresentation” or knowingly “false”
`
`as
`statement by Motif regarding samples.
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`3
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`Case 1:22-cv-00311-WCB Document 293 Filed 12/05/23 Page 5 of 5 PageID #: 18111
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`Respectfully,
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`/s/ Jeremy A. Tigan
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`Jeremy A. Tigan (#5239)
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`JAT: lo
`Attachments
`cc:
`Clerk of the Court (via hand delivery)
`All Counsel of Record (via CM/ECF and email)
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