Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 1 of 23 PageID #: 27287
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-311 (WCB)
`
`REDACTED - PUBLIC VERSION
`
`Original Filing Date: April 1, 2024
`Redacted Filing Date: April 15, 2024
`
`) ) ) ) ) ) )
`
`
`
`) ) )
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`
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`DEFENDANT MOTIF FOODWORKS, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF
`IMPOSSIBLE FOODS INC.’S MOTION TO COMPEL DISCOVERY RELATED TO
`INVESTIGATIONS
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
`
`Attorneys for Defendant Motif FoodWorks, Inc.
`
`OF COUNSEL:
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`Razmig Messerian
`Patrick T. Schmidt
`Scott L. Watson
`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 Huish
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2755 E. Cottonwood Parkway, Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 2 of 23 PageID #: 27288
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`
`Sandy Shen
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Abigail E. Clark
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2601 South Bayshore Drive, Suite 1550
`Miami, FL 33133
`(305) 402-4880
`
`Evan Pearson
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`300 West 6th Street, Suite 2010
`Austin, TX 78701
`(737) 667-6100
`
`April 1, 2024
`
`- ii -
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 3 of 23 PageID #: 27289
`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION ...............................................................................................................1
`
`BACKGROUND .................................................................................................................3
`
`III.
`
`ARGUMENT .......................................................................................................................5
`
`A.
`
`The
`
` Discovery Is Not Relevant to Motif’s Equitable Defenses ..................5
`
`1.
`
`2.
`
`3.
`
`4.
`
`Impossible provides no reason for the Court to reconsider either of
`its prior rulings ............................................................................................5
`
`Impossible’s newly cited evidence does not suggest that further
`discovery is likely to lead to evidence rebutting the equitable
`defenses ........................................................................................................6
`
`investigations to
`Motif has not, and will not, rely on the
`support any equitable counterclaim.............................................................9
`
`Motif never asserted that Impossible was entitled to deposition
`testimony ....................................................................................................10
`
`B.
`
`C.
`
`The allegedly “new” bases for the Motion are waived or inapposite ....................11
`
`Impossible’s pursuit of discovery in the Foodstuff Patents case related to
`the unpled trade-secret claim from the Yeast Patents case is improper .................14
`
`CONCLUSION ..................................................................................................................15
`
`
`
`IV.
`
`
`
`
`
`
`- iii -
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 4 of 23 PageID #: 27290
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Computer Economics, Inc. v. Gartner Grp., Inc.,
`50 F. Supp.2d 980 (S.D. Cal. 1999) ...........................................................................................4
`
`Flexible Techs., Inc. v. SharkNinja Operating LLC,
`C.A. No. 18-348-CFC, 2019 WL 1417465 (D. Del. Mar. 29, 2019) ...............................3, 4, 15
`
`Leucadia, Inc. v. Applied Extrusion Techs., Inc.,
`755 F. Supp. 635 (D. Del. 1991) ..............................................................................................15
`
`Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros,
`176 F.3d 669 (3d Cir. 1999).......................................................................................................6
`
`Mallet & Co. Inc. v. Lacayo,
`16 F.4th 364 (3d Cir. 2021) .....................................................................................................13
`
`Smith v. Meyers,
`C.A. No. 9-814-JJF, 2009 WL 5195928 (D. Del. Dec. 30, 2009) .............................................6
`
`Topia Technology, Inc. v. Egnyte, Inc.,
`C.A. No. 21-1821, D.I. 226 (D. Del. Feb. 9, 2024) ...................................................................5
`
`TQ Delta LLC v. Time Warner Cable Inc.,
`C.A. No. 15-615-RGA, D.I. 540 (D. Del. Nov. 22, 2022).........................................................6
`
`Other Authorities
`
`D. Del. LR 7.1.5 ...............................................................................................................................6
`
`
`
`
`
`- iv -
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 5 of 23 PageID #: 27291
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`
`
`I.
`
`INTRODUCTION
`
`The Court should reject Impossible’s second motion for reconsideration to conduct a broad
`
`fishing expedition into Motif’s relationship with third-party
`
` which
`
`is neither relevant, nor reasonably calculated to lead to anything relevant, to the issues in the
`
`Foodstuff Patent litigation. Although Impossible’s latest bite at the apple is styled as a motion to
`
`compel (D.I. 407, the “Motion”), it is a request that the Court reconsider its two prior orders in the
`
`Foodstuff Patent case denying this discovery, without any meaningful effort to meet the standard
`
`for reconsideration. To the extent Impossible now proffers new theories of relevance or evidence,
`
`Impossible’s arguments are even more disconnected from the relevant issues in the Foodstuff
`
`Patent case than in its two prior requests.
`
`Impossible’s latest Motion alleges that it is entitled to deposition testimony on Motif’s
`
`relationship with
`
` because the substance of
`
` investigations is supposedly relevant
`
`to (1) Motif’s equitable counterclaims (including to a potential injunction claim by Impossible),
`
`(2) reasonable royalty damages under the Georgia-Pacific factors, and (3) willfulness. Impossible
`
`raised these same bases in its prior attempts to take this discovery, and the Court rejected them.
`
`The common thread is Impossible’s contention that the
`
` investigations may show that Motif
`
`planned to steal Impossible’s Foodstuff Patent technology and compete with Impossible, even
`
`though Impossible previously told the Court that
`
` investigations related to the technology
`
`underlying the Yeast Patent case. See Mot. at 1. This theory is wrong on the facts; but, even if
`
`true, it would not logically entitle Impossible to the discovery it seeks.
`
`The Court has already twice rejected Impossible’s claim that the discovery is relevant to
`
`Motif’s counterclaims—first in denying Impossible’s motion to compel Motif to designate a
`
`30(b)(6) witness on the
`
` investigations, (D.I. 378 at 4), and second by rejecting Impossible’s
`
`
`
`1
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 6 of 23 PageID #: 27292
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`
`
`“emergency” oral motion to compel Motif’s former CEO, Michael Leonard, to answer deposition
`
`questions related to
`
`Impossible provides no basis to reconsider these prior rulings. The
`
`“new” evidence (discussed below) that Impossible brings forth this third time around was not
`
`previously provided to the Court, although Impossible could have done so, and in any event it
`
`undermines rather than supports Impossible’s theory. The
`
` issue is simply not relevant to
`
`any of Motif’s equitable defenses, and Motif has repeatedly told Impossible that Motif has not and
`
`will not rely on the
`
`investigations to support Motif’s equitable defenses.
`
`Impossible’s argument that
`
` is relevant to damages and willfulness is equally
`
`misguided and falls far short of the “very specific” and “well-reasoned” explanation that the Court
`
`requested. Evidence regarding the
`
` investigations could only be relevant to damages and
`
`willfulness if Impossible were able to show some nexus between the investigations and the
`
`Foodstuff Patent technology in this case. But Impossible unequivocally told the Court that the
`
` investigations related to the technology underlying the Yeast Patents. The Court should
`
`reject these theories of relevance as well.
`
`The reason why Impossible is so adamant about seeking discovery into facts that are
`
`untethered from any legitimate issue in this case is transparently simple. Impossible is seeking to
`
`inject highly inflammatory and prejudicial allegations into the Foodstuff Patent case and/or to use
`
`discovery in this case as an investigatory tool to bolster its previously rejected misappropriation
`
`of trade secret claims against Motif, which—based on Impossible’s complete inaction since that
`
`denial—clearly lacks sufficient evidentiary basis to warrant a separate case. This tactic is not only
`
`a brazen end-run around the Court’s denial of Impossible’s prior motion to amend its complaint in
`
`the Yeast Patent case, but also antithetical to the well-established Third Circuit policy that trade
`
`secret plaintiffs are not entitled to discovery on potential misappropriation claims unless and until
`
`
`
`2
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 7 of 23 PageID #: 27293
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`
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`they are able to define their purported trade secrets with particularity. The Court was right to reject
`
`Impossible’s prior attempts to abuse the discovery process and should put an end to Impossible’s
`
`serial requests for reconsideration of the issue.
`
`II.
`
`BACKGROUND
`
`On December 29, 2023, one day before the deadline to amend pleadings, Impossible
`
`notified Motif for the first time that it intended to seek leave to add a new claim of trade secret
`
`misappropriation to the Yeast Patents case. As its sole basis, Impossible argued that “Motif’s
`
`document production in this case shows that Motif hired a third party to obtain Impossible trade
`
`secrets from
`
`
`
` D.I. 285 at 2.
`
`By that time, the deadline to amend the pleadings in the Foodstuff Patent case had long
`
`passed. And Impossible represented to the Court that the “science behind the Yeast Patents is the
`
`same as the science behind Impossible’s trade secrets involved in its
`
`—
`
`the focal point of the proposed DTSA claim.” Id., 8. Impossible further alleged that there was
`
`“no mystery about the trade secret claims at issue” because “Motif already produced detailed
`
` expressly detailing what Motif asked for, and what it acquired.”
`
`Id., 9. In reply, Impossible emphasized
`
` investigations’ tie to the Yeast Patents case,
`
`stating that the
`
`documents “show, on their face … trade secrets about
`
`
`
`underlying the inventions seen in the Yeast Patents.” D.I. 322 at 5.
`
`Because Impossible sought to add a DTSA claim, governing law required it to provide
`
`Motif and the Court with a detailed description of its alleged trade secrets. See Flexible Techs.,
`
`Inc. v. SharkNinja Operating LLC, C.A. No. 18-348-CFC, 2019 WL 1417465, at *2 (D. Del. Mar.
`
`29, 2019) (“[A] plaintiff must identify a trade secret with sufficient particularity so as to provide
`
`
`
`3
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 8 of 23 PageID #: 27294
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`
`
`notice to a defendant of what he is accused of misappropriating and for a court to determine
`
`whether misappropriation has or is threatened to occur.”). The purpose of this requirement is to
`
`protect trade secret defendants against broad fishing expeditions. See, e.g., Computer Economics,
`
`Inc. v. Gartner Grp., Inc., 50 F. Supp.2d 980, 985 (S.D. Cal. 1999) (“The rule requiring a plaintiff
`
`to disclose its trade secrets at the outset of discovery . . . prevents plaintiffs from using the
`
`discovery process as a means to obtain the defendant’s trade secrets.”).
`
`Impossible accordingly promised to provide the requisite disclosure within one week of
`
`the December 29, 2023 meet and confer on Impossible’s motion for leave to amend the pleadings.
`
`Impossible then reneged and took the position that it would only provide the legally-required
`
`disclosure if the Court granted its motion for leave to file the Fourth Amended Complaint. To this
`
`day, Motif has not received any particularized trade-secret disclosure from Impossible.
`
`The Court denied Impossible’s motion to add its proposed trade-secret claim. D.I. 336.
`
`The Court found that the “new claim was based on actions by a third party,
`
`,”
`
`and told Impossible it should pursue any trade secrets claim it believed it may have in a separate
`
`lawsuit. Id. at 2, 4. Months have passed and Impossible has not filed any new trade secret lawsuit.
`
`Rather than pursue separate litigation, Impossible has repeatedly attempted to backdoor the
`
` issue into the Foodstuff Patent case. Impossible first demanded 30(b)(6) deposition
`
`testimony on the
`
` investigations. The Court rejected this request, finding that “Impossible
`
`ha[d] not made a persuasive showing that the subject matter of that topic is relevant to the dispute
`
`at issue in this [Foodstuff Patent] case.” D.I. 394 at ¶4. Undeterred, Impossible then sought the
`
`same discovery, this time purportedly through the 30(b)(1) deposition of Motif’s former CEO,
`
`Michael Leonard, on March 14, 2024. During an “emergency” conference held on a break in Dr.
`
`Leonard’s deposition, the Court again rejected Impossible’s claims of relevance and prohibited
`
`
`
`4
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 9 of 23 PageID #: 27295
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`
`
`Impossible from questioning Dr. Leonard on the
`
` issues. In response to new arguments
`
`from Impossible during that hearing that the requested discovery was supposedly relevant to
`
`damages, the Court expressed skepticism and frustration, noting that Impossible had not raised any
`
`such claim previously, despite multiple opportunities to do so. The Court indicated that it would
`
`only consider a further request from Impossible on the issue if it had a “very specific” and “well-
`
`reasoned” explanation for why the Court should reconsider its previous rulings that
`
` is not
`
`relevant to any issue in the present dispute.
`
`Impossible then proceeded to exhaust its 7-hour deposition time limit with third-party Dr.
`
`Leonard without reserving any time for additional questions or even indicating that it intended to
`
`seek additional time with Dr. Leonard. Impossible also did not make a proffer or record during
`
`the deposition of what additional questions it would ask Dr. Leonard if the Court allowed further
`
`discovery into
`
` Four days later, on March 18, Impossible filed this Motion, without notice
`
`or any effort to meet and confer with Motif.1
`
`III. ARGUMENT
`
`A.
`
`The
`
` Discovery Is Not Relevant to Motif’s Equitable Defenses
`
`1.
`
`Impossible provides no reason for the Court to reconsider either of its
`prior rulings
`
`Impossible’s lead argument—that discovery into
`
` is “pivotal” to rebutting Motif’s
`
`unclean hands and estoppel counterclaims—is really just a rehash of the same arguments that the
`
`Court has now rejected twice over. Mot. at 8. Without even attempting to meet the standard for
`
`
`1 Delaware courts routinely deny discovery-related motions for failure to meet-and-confer. See
`Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821, D.I. 226 (D. Del. Feb. 9, 2024) (holding
`that request was “clearly unripe” for failure to complete meeting-and-conferring).
`
`
`
`5
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 10 of 23 PageID #: 27296
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`
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`reconsideration,2 Impossible asserts the same theory featured in its prior, unsuccessful briefing.
`
`Compare Mot. at 9 (“Impossible requires this information to effectively refute Motif’s unclean
`
`hands defense. Motif’s obstructive behavior vitally impacts Impossible’s ability to prepare an
`
`effective case both with respect to Impossible’s critical equitable request for injunctive relief as
`
`well as disproving Motif’s estoppel defense related to Impossible’s infringement claims.”), with
`
`D.I. 378 (arguing that Impossible is “entitled to testimony on
`
`because it is relevant to
`
`Motif’s equitable defenses,” and that “Motif’s equitable defenses (including estoppel and unclean
`
`hands) are premised on its assertions that Motif approached Impossible with an offer to sell heme
`
`to Impossible, whereupon Impossible purportedly encouraged Motif to develop heme.”). Because
`
`Impossible cites no new facts or change in controlling law that would warrant the Court
`
`reconsidering either of its prior rulings, the Court should deny this basis for Impossible’s Motion.
`
`2.
`
`Impossible’s newly cited evidence does not suggest that further discovery
`is likely to lead to evidence rebutting the equitable defenses
`
`Even if the Court were inclined to consider Impossible’s newly cited (though, previously
`
`available) evidence, such evidence still fails to establish any relevant link to Motif’s equitable
`
`defenses. For example, Impossible now claims that Motif’s
`
` (which
`
`was produced to Impossible as early as July 21, 2023) allegedly demonstrates that Motif was never
`
`sincere about seeking a partnership with Impossible, and that this supposedly has the potential to
`
`undermine the equitable defenses. Mot. at 8 n. 3. Putting aside that Impossible has long had the
`
`
`2 The purpose of a motion for reconsideration is “to correct manifest errors of law or fact or to
`present newly discovered evidence,” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176
`F.3d 669, 677 (3d Cir. 1999) (internal quotations and citation omitted), and such motions are
`“sparingly granted.” D. Del. LR 7.1.5; see also TQ Delta LLC v. Time Warner Cable Inc., C.A.
`No. 15-615-RGA, D.I. 540 (D. Del. Nov. 22, 2022). “A motion for reconsideration is not properly
`grounded on a request that a court rethink a decision already made.” Smith v. Meyers, C.A. No. 9-
`814-JJF, 2009 WL 5195928, at * 1 (D. Del. Dec. 30, 2009) (citation omitted).
`
`
`
`6
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 11 of 23 PageID #: 27297
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`
`
` and could have made this argument in prior briefing, Impossible can attempt
`
`to assert this theory to rebut Motif’s equitable defenses without the need for any additional
`
`discovery. Indeed, Impossible fails to provide any explanation as to how the
`
`
`
`supposed impact on the equitable defenses somehow entitles it to new and different discovery into
`
`the
`
` issues.
`
`Impossible’s theory relating to the
`
` also fails on its merits. Impossible
`
`fails to inform the Court that the
`
` (Mot. Ex. 8), only contemplated a limited
`
`period of exclusivity between Motif and
`
` and only for
`
`a
`
` As Dr. Leonard explained, Motif
`
`
`
`
`
`
`
`
`
`
`
` Ex. A at 43:9-20 (emphasis added). There is nothing in the
`
` to suggest
`
`that Motif did not reasonably believe that it and Impossible were pursuing a partnership in good
`
`faith.
`
`Further, Motif has never represented that Impossible was its
`
` As
`
`Dr. Leonard testified, “
`
`
`
`
`
`
`
`
`
`
`
`.” Ex. A at 47:19-48:3. Motif markets a variety of ingredients and solutions for
`
`
`
`7
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 12 of 23 PageID #: 27298
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`
`
`unbranded opportunities, unlike Impossible, which markets its products directly. Motif has never
`
`represented that
`
`
`
`testimony. See Mot. Ex. 2 at 18-28 (Motif’s Response to Interrogatory No. 4, detailing Motif and
`
` This is supported by both documents and deposition
`
`Impossible’s business relationship).
`
`It is also undisputed that Impossible and Motif
`
` to protect their
`
`discussions about potential partnership, that representatives from the two companies
`
`
`
` said partnership, and that Motif hoped to cement a deal
`
`with Impossible up to and until
`
` and filed this lawsuit. It
`
`was Impossible that broke off the potential partnership, not Motif. See id. Nothing relating to the
`
`investigation has the tendency to undermine this evidence.
`
`Finally, neither Impossible’s self-serving characterization of the documents, nor its set of
`
`rhetorical questions at pages 8-9 of the Motion, demonstrate that discovery into
`
` is
`
`necessary to rebut Motif’s equitable defenses. In fact, the very
`
` documents Impossible now
`
`cites bolster the equitable defenses, by corroborating how Motif viewed the
`
` investigation
`
`to be in furtherance of the joint collaboration that Impossible had led Motif to believe was possible
`
`between the parties. For example, Ex. 9 to the Motion states:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Mot. Ex. 9 at -457. Email communications produced by Motif further support this conclusion, by
`
`describing the
`
` investigation to
`
` as an effort by Motif to “
`
`
`
`
`
`8
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 13 of 23 PageID #: 27299
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`
`
`” with Impossible. Ex. B at 8119. Motif and
`
`clearly understood that the goal
`
`of the projects was to hone a relationship with Impossible. Impossible has not mustered any
`
`evidence to the contrary. The unsupported conjecture, which Impossible has not seen fit to file a
`
`trade-secret lawsuit in pursuit of, cannot serve as a basis for reconsideration of the Court’s earlier
`
`rulings.
`
`3.
`
`Motif has not, and will not, rely on the
`any equitable counterclaim
`
`investigations to support
`
`Impossible alleges that “Motif has affirmatively pointed to its covert investigations of
`
`Impossible as evidence of its desire to ‘partner’ with Impossible.” Mot. at 8. Not so. In its detailed
`
`interrogatory response on the
`
` issue, Motif explained the three different engagements with
`
`(1) in
`
` agreed to attempt to collect certain information to assist Motif
`
`in
`
` for the partnership with Impossible, Mot. Ex. 3 at 6; (2) when “Motif asked
`
` again to help Motif
`
`id; and (3) to “continue helping Motif
`
`,”
`
`
`
`.” Id. at 7. For the latest engagement, Motif cited a document explaining:
`
`
`
`
`
`
`
`
`
`
` Id. (quoting Ex. C at -863) (emphasis added).
`
`Nowhere in this interrogatory response did Motif contend that the
`
`investigations
`
`support Motif’s equitable counterclaims. In fact, in response to Impossible’s Interrogatory No. 4,
`
`which seeks “the complete factual and legal bases for Motif’s defense that Impossible Foods “is
`
`barred, in whole or in part, by estoppel, acquiescence, waiver, unclean hands, and/or other
`
`
`
`9
`
`

`

`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 14 of 23 PageID #: 27300
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`
`
`equitable defenses,” Motif provided over ten pages of substantive narrative response, and did not
`
`mention
`
` a single time. Mot. Ex. 2 to Mot. at 18-29.
`
`Yet, to remove all doubt, Motif told Impossible on meet-and-confer that it would not rely
`
`on the
`
` materials to support any equitable defense, and even offered to enter into a
`
`stipulation to that effect. Motif reiterated this position on the emergency conference with the Court
`
`related to Dr. Leonard’s testimony on March 14, 2024. Motif does not need the
`
`documents
`
`to establish its equitable defenses and will instead point to the numerous discussions and exchanges
`
`of information between Impossible and Motif—conduct which clearly indicates Impossible’s
`
`interest and encouragement for Motif to invest in the accused technology for the purpose of a
`
`potential business partnership with Impossible. Impossible’s argument that Motif has
`
`affirmatively relied on the
`
` investigations to bolster its equitable counterclaims is not just
`
`unfounded, but plainly incorrect.
`
`4.
`
`Motif never asserted that Impossible was entitled to deposition testimony
`
`Impossible makes a halfhearted attempt to argue that Motif suggested deposition testimony
`
`would be an appropriate vehicle to explore irrelevant issues relating to the
`
` investigations.
`
`Mot. at 9. But Motif’s position has always been that
`
`-related discovery is irrelevant to the
`
`patent disputes at issue in the present litigation, and Motif’s letter explaining why Motif refused
`
`to produce a witness on the
`
`-related 30(b)(6) topic makes that clear. See Mot. Ex. 10 at 3
`
`(“[T]his request is, among other things, overly broad and disproportionate to the needs of the case.
`
`It is also directed solely at Impossible’s unpled claim for trade secret misappropriation that the
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`Court has denied leave to add to the present lawsuit.”). Motif also pointed to the documents both
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`it and
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` produced and Impossible’s subpoenas of
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` as alternative
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`sources of discovery. Id. Indeed, Impossible obtained documents from both Motif and
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`10
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`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 15 of 23 PageID #: 27301
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`that, according to Impossible, “expressly detail[ed] what Motif asked for, and what it acquired.”
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`D.I. 285 at 9. Impossible is not entitled to further discovery on the
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` investigations.
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`B.
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`The allegedly “new” bases for the Motion are waived or inapposite
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`Impossible further alleges that the “
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`investigations are also plainly relevant to
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`damages and, in particular, Georgia Pacific factors 5, 9, and 11.” Mot. at 10. As the Court noted
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`at the “emergency” conference, Impossible never raised damages as a basis for the
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`
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`investigations’ relevance before, despite having had multiple opportunities to do so. And, despite
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`the Court telling Impossible that it would have to provide a “very specific” and “well-reasoned”
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`explanation for why these newly proffered bases entitled it to discovery, Impossible’s latest
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`Motion treats them as an afterthought.
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`Specifically, Impossible first asserts that the
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` investigations are relevant to damages
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`because they would inform the true relationship between the [hypothetical] licensor and licensee
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`under the Georgia-Pacific factors. Mot. at 10. This argument is nonsensical.
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`
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`investigations into Impossible during a time when Impossible and Motif were discussing a
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`potential partnership are not instructive as to the terms of the hypothetical negotiation under
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`Georgia-Pacific. They do not change the commercial relationship between Motif and Impossible
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`(Factor 5), do not weigh on the utility and advantages of the patented technology (Factor 9), nor
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`are they instructive of the scope of use Motif has allegedly made of the patented technology (Factor
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`11). Impossible has not offered any cogent argument as to how
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` investigations could
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`possibly impact the hypothetical negotiation. Additionally, Impossible fails to show how the
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`investigations “establish” that Motif and Impossible were competitors, and Impossible can
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`make this argument without
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`. Indeed, the nature of the parties’ relationship within the food
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`industry and with respect to each other is a topic that Impossible has thoroughly explored with
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`11
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`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 16 of 23 PageID #: 27302
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`numerous Motif and Impossible witnesses. See, e.g., Ex. D at 20:7-21:17 (explaining that Motif
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`is
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`
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`); 103:23-106:9 (discussing Impossible’s entrance into the retail market
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`and other “legacy brands” that sell in that market); 280:14-283:9 (explaining that
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`(explaining that Motif was
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` Ex. A at 66:13-70:13
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`, and answering
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`questions about whether a prospective Motif customer was a competitor of Impossible); 100:14-
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`104:15 (discussing an
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` between Motif and Impossible in which Motif’s
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`168:16 (characterizing Motif’s
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`
`
`
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` ); Ex. E at 167:12-
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`
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`
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`105:14 (Impossible corporate representative testifying that that Motif and Impossible d
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`
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` Ex. G at 104:15-106:20 (Impossible corporate representative
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` instead); see also Ex. F at 100:5-
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`acknowledging that Motif and Impossible
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`); Ex. H at 72:17-77:11 (former Impossible employee who
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`Impossible points to no specific
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`-related evidence that would illuminate the matter further.
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`12
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`Impossible also contends for the first time that the
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`investigations are relevant to the
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`“utility” of Impossible’s patents because the investigations allegedly show how Motif valued the
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`patented inventions. Mot. at 10. As explained above in Section III.A.ii, this vague assertion is
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`unsupported by the evidence, and Impossible again can make this argument without
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`Regardless, Impossible does not even attempt to establish any nexus between the
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`investigations, which aimed to gather information on
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`
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`
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` that
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`Impossible told the Court underlie the technology of the Yeast Patents, D.I. 285 at 8, and the
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`asserted Foodstuff Patents. Without a tie between the Foodstuff Patent features, i.e., the generation
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`of a meaty aroma from a meat-replica matrix, and the substance of the
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` investigations, there
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`is no relevance to Georgia Pacific factor 9.
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`Here, Impossible conceded that there is no nexus between the
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` investigations and
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`the patented features in the Foodstuff Patent case. In seeking to amend its complaint, Impossible
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`represented that the
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` investigations are related to the technology underlying the Yeast
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`Patents, not the Foodstuff Patents. See D.I. 285 at 8 (the “science behind the Yeast Patents is the
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`same as the science behind Impossible’s trade secrets involved in its
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`—
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`the focal point of the proposed DTSA claim”). And, Impossible alleged in its proposed amended
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`complaint that
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`investigated supposed trade secret features, as opposed to any features that
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`Impossible had disclosed and claimed in its patents. See Mallet & Co. Inc. v. Lacayo, 16 F.4th
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`364, 384 (3d Cir. 2021) (“When the breadth of a trade secret description is so far-reaching that it
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`includes publicly available information (like patent disclosures) and admitted industry knowledge,
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`that information is not specific enough to be accorded trade secret status.”) (cleaned up). Once
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`again, Impossible is taking a position contrary to what it previously told this Court.
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`13
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`Case 1:22-cv-00311-WCB Document 464 Filed 04/15/24 Page 18 of 23 PageID #: 27304
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`Impossible also argues, again for the first time, that the
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` investigations are relevant
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`to Impossible’s claim of willful infringement. Mot. at 10. But Motif has already provided
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`Impossible with the dates it was aware of Impossible’s patents, and Impossible points to no
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`evidence that
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`investigated any of Impossible’s patented processes. For the
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`
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`investigations to have any relevance to willfulness, Impossible would have to establish a nexus
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`between the investigations and the features of the patents it claims were willfully infringed. As
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`explained above, Impossible has not (and cannot) do so.
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`Finally, Impossible glosses over the role that its own delay played in creating the set of
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`circumstances it faces. As Impossible admits, Motif produced documents related to the
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`
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`investigations by the substantial document production deadline in July 2023. Mot. at 5. Impossible
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`then subpoenaed
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` in October 2023. Impossible did not raise its intent to amend the operative
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`complaint to assert trade secret misappropriation claims until December 2023. If Impossible needed
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`this discovery so desperately in the Foodstuff Patents case, why did Impossible fail to raise the issue
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`for eight months? Once again, the answer is plain. Impossible does not need information related to
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`the
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` investigations to effectively pursue its claims in the Foodstuff Patents case.
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`C.
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`Impossible’s pursuit of discovery in the Foodstuff Patents case related to the
`unpled trade-secret claim from the Yeast Patents case is improper
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`Despite its repeated failures, Impossible will not stop creating new purported reasons for
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`seeking this discovery. As noted above, Impossible told the Court that the
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` investigations
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`are intimately related to the Yeast Patents case and concerned trade secrets. See D.I. 285, 322.
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`Impossible promised to provide Motif with a particularized trade-secret disclosure, but then
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`reneged. When the Court denied Impossible leave to amend, D.I. 336, Impossible did not file a
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`separate lawsuit and instead attempted to obtain
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`-related discove