Well Master Corporation v. Flowco Production Solutions, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 21-cv-02145-CMA-KAS
WELL MASTER CORPORATION,
Plaintiff,
v.
FLOWCO PRODUCTION SOLUTIONS, LLC,
Defendant.
ORDER REJECTING MAGISTRATE JUDGE RECOMMENDATION
AND DENYING DEFENDANT’S MOTION TO EXCLUDE
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathryn A. Starnella (the “Recommendation”). (Doc. # 271.)
Defendant/Counter-Plaintiff Flowco Production Solutions, LLC (“Flowco”) filed a Motion
to Exclude “all evidence and argument from Plaintiff Well Master Corporation that the
priority date for the Patents-in-Suit is earlier than the respective application dates.”
(Doc. # 256.) Specifically, evidence and argument related to certain alleged prior art,
including Plaintiff/Counter-Defendant Well Master Corporation’s (“Well Master”) “Sand
Viper” plunger product (the “Sand Viper”). Well Master filed a Response in Opposition to
Defendant’s Motion to Exclude (Doc. # 260) and Flowco filed a Reply in Further Support
of Defendant’s Motion to Exclude (Doc. # 263).
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Magistrate Judge Starnella issued the Recommendation to grant Flowco’s motion
in its entirety highlighting the potentially dispositive effect of excluding evidence of an
earlier priority date. (Doc. # 271 at 1 n.1.) Well Master then filed objections to the
Recommendation within the required 14 days (Doc. # 276) and Flowco filed a response
to Well Master’s objections within the required 14 days (Doc. # 277). For the following
reasons, the Court respectfully rejects the Recommendation and sustains Well Master’s
objections. Thus, Flowco’s Motion to Exclude (Doc. # 256) is denied in its entirety.
I. 	BACKGROUND
This case was initiated by Well Master on August 9, 2021 (see Doc. # 1) and it
has been a battle of motion practice ever since. Flowco’s Motion to Exclude (Doc. #
256) and its supporting briefs have ignored this Court’s Order on March 26, 2024,
granting Well Master’s Motions to Exclude Flowco’s Initial, Supplemental, and Second
Supplemental Invalidity Contentions, as well as its Motion to Dismiss Flowco’s
Counterclaims for Declaratory Judgment of Invalidity and Inequitable Conduct. (Docs.
## 127, 146, 195 (Mots.) & 226 (Order).)1
Given Flowco’s defective invalidity contentions, this Court’s rulings in effect
confirmed the justification for Well Master’s objections to Flowco’s discovery requests,
Interrogatory No. 1 and Request for Production No. 1, as outside the scope of discovery
and premature. See (Doc. # 256 at 5). As Well Master points out, “[R]elevancy cannot
1 The Recommendation also fails to cite this order (Doc. # 226) in its procedural history. See (Doc. # 271
at 1–6).
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be determined by defective invalidity contentions which failed to state a claim for
invalidity” to begin with. (Doc. # 260 at 6.)
As of March 2024, more than two and a half years into this case, the Court noted
that it was still unclear whether Flowco was making unfounded assertions about the
materiality of the Sand Viper as prior art, or whether Flowco was being deliberately
obtuse. (Doc. # 226 at 10 n.11.) The Court also noted Flowco’s contradictory litigation
positions related to the Sand Viper:
Infringement and invalidity are two separate analytical inquiries, but even
supposing the connection existed, Flowco’s position is diminished by its
contradictory litigation positions assumed in this case. For one particularly
poignant example, the Court reiterates its earlier point that Flowco claims
it could not serve invalidity contentions that comply with the Local Patent
Rules because, for one, it could not understand how to identify a “fishing
neck” feature on a plunger. Yet, elsewhere, Flowco inexplicably argues
that Well Master’s “Sand Viper” product is prior art because a mere
picture of the Sand Viper “shows . . . a fishing neck.” (Doc. # 143 at 6–7
(emphasis added).)
(Doc. # 226 at 15 n.13.)
Further, the Court stated: “To the extent that Flowco is genuinely confused, it can
seek clarification informally through conferral or by propounding interrogatories.” (Id.)2
Thereafter, the parties conferred and Well Master stipulated to allowing Flowco to add
Sand Viper back to its initial invalidity contentions to avoid further motion practice. See
(Docs. ## 234, 249). Just a few days after this conferral, Well Master served its third3
2 Flowco’s contradictory and potentially unfounded invalidity contentions regarding the Sand Viper leads
the Court to reject the Recommendation’s position and agree with Well Master that its third supplemental
responses to Flowco’s Interrogatory No. 1 and Request for Production No. 1 were not required by
Magistrate Judge Mix’s May 24, 2022, order.
3 Well Master had already served a prior supplemental response to Flowco’s Interrogatory No. 1 and
Request for Production No. 1 on September 7, 2023, referring to the contents of David Green’s
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supplemental discovery responses which provided further detail on the conception and
development of the Sand Viper and, on June 24, 2024, Flowco finally successfully
added Sand Viper to its counterclaims. See (Doc. ## 249, 256 at 5–6). Well Master
represents that it “would have never agreed to [the Sand Viper] stipulation had it known
of Flowco’s intention to bring the [present] Motion [to Exclude].” (Doc. # 276 at 2.)
Despite Flowco’s shifting invalidity contentions, it argues that Well Master
needed to disclose the evidence at issue at the outset of this case as part of required
D.C.COLO.LPtR 5 (“Local Patent Rule 5”) infringement contention disclosures. (Doc. #
256 at 3-4, 7–8.) Well Master responds that none of its documents fall under the
purview of Local Patent Rule 5 subparts (a) or (b) and that Flowco has failed to meet its
burden to prove a Local Patent Rule 5 violation. (Doc. # 260 at 7–10.) The
Recommendation “agrees with Well Master’s assertion that Flowco has not properly
developed its Local Patent Rule 5 argument with analysis and legal support.” (Doc. #
271 at 19 (citing Well Master’s Resp., Doc. # 260 at 8).) However, the Recommendation
did not address the parties’ Rule 5 arguments because it found that Well Master
violated Federal Rule of Civil Procedure 26(e) and that the exclusion of evidence was
warranted under Rule 37(c). (Id.)
declaration. See (Docs. ## 249-1, 256-1, 260 at 5–6). Mr. Green’s declaration was originally filed by Well
Master with the United States Patent Trail and Appeal Board (“PTAB”) on November 10, 2022, in defense
of Flowco’s petitions for inter partes review filed with the PTAB on August 9, 2022, seeking to challenge
the validity of Well Master’s asserted patents in this case. See (Docs. ## 83, 260 at 4). Flowco then
moved to stay this case pending resolution of its petitions, which was opposed by Well Master, but
granted by the Court on September 12, 2022. (Docs. ## 83, 95, 98.) Nine months later, after the PTAB
declined to initiate inter partes review (Docs. ## 112, 115, 260 at 4–5), Well Master then moved to lift the
stay, which Flowco opposed (Doc. # 118). On June 7, the Court issued an order lifting the stay. (Doc. #
124.) Thus, Flowco’s denied inter partes petitions delayed this case for nine months.
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The modified scheduling order in this case sets the fact discovery deadline as
May 13, 2025, the affirmative expert deadline as June 10, 2025, the rebuttal expert
deadline as July 14, 2025, the deadline to complete expert discovery as August 11,
2025, and the dispositive motion deadline as September 12, 2025. (Doc. # 274.) The
Final Pretrial Conference is currently scheduled for November 7, 2025, at 1:30 p.m. (id.)
and a trial date has not been set.
II. 	APPLICABLE LAW
A. 	LOCAL PATENT RULE 5
The District of Colorado’s Local Patent Rules set forth a system that runs parallel
to the Federal Rules of Civil Procedure’s discovery protocols. Relevant here, the District
of Colorado, like many other jurisdictions, has adopted Local Patent Rules that require
parties to disclose certain aspects of their infringement and invalidity theories early in
the case. See generally XY, LLC v. Trans Ova Genetics, LC, No. 17-cv-00944, 2018
WL 6791102, at *4 (D. Colo. Oct. 2, 2018) (likening patent contentions to initial
disclosures in discovery); Fox Factory, Inc. v. SRAM, Ltd. Liab. Co., No. 18-cv-00127,
2018 WL 6603960, at *3 (D. Colo. Oct. 16, 2018) (explaining the normative aims of
Colorado’s Local Patent Rules).
“[I]nfringement and invalidity contentions . . . force each side to show its cards:
the patent holder shows in detail how the accused device meets each claim limitation[,]
and the accused infringer shows in detail how the claim is invalid.” Lear Corp. v. NHK
Seating of Am. Inc., No. 2:13-cv-12937, 2020 WL 1815876, at *2 (E.D. Mich. April 10,
2020). Both types of patent contention disclosures involve the same “matching game.”
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Id. That “game” requires producing claims charts that trace figurative lines between
either the Accused Instrumentality (for infringement contentions) or prior art (for
invalidity contentions) and the limitations of the patents-in-suit’s asserted claims. Id.
Although the Local Patent Rules governing patent contentions operate somewhat
like initial disclosures under Rule 26 of the Federal Rules of Civil Procedure, the two
sets of rules serve distinct purposes. Both Rule 26 initial disclosures and the Local
Patent Rules’ patent contention disclosures seek to equip a litigant with the information
it needs to develop and support its claim(s). However, the Local Patent Rules also force
the parties to “pin down” their litigation theories, thereby “confining discovery and trial
preparation to information that is pertinent to th[ose] theories of the case.” O2 Micro
Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1365 (Fed. Cir. 2006) (emphasis
added).
Contentions are meant to “crystalize” the parties’ theories of the case early in
litigation to prevent the “shifting sands approach” to the case. Fox Factory, 2018 WL
6603960, at *3 (citation omitted). For that reason, the Local Patent Rules serve a
secondary purpose of aiding the Court in limiting and managing discovery. Id. (citing
Jama v. City & Cty. of Denver, 304 F.R.D. 289, 295 (D. Colo. 2014)). Local Patent
Rules are not, however, “a straitjacket into which litigants are locked from the moment
their contentions are served.” Comcast Cable Commc’ns. Corp. v. Finisar Corp., No. C
06-04206 WHA, 2007 WL 716131, at *2 (N.D. Cal. Mar. 2, 2007). Importantly, this
notion of “crystalizing the parties’ theories of the case” applies equally to both
infringement and invalidity contentions. See (Doc. # 226 at 6).
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Local Patent Rule 5, regarding document production accompanying infringement
contentions, provides, in relevant part:
Contemporaneously with service of the Infringement Contentions, the
party claiming patent infringement shall produce to each party (or make
available for inspection and copying) the following documents and identify
by production number which documents correspond to each category:
(a) All documents demonstrating each disclosure, sale (or offer to
sell), or any public use of the claimed invention before the
application date or the priority date (whichever is earlier) for each
patent in suit;
(b) All documents created on or before the application date or the
priority date (whichever is earlier) for each patent in suit that
demonstrate each claimed invention's conception and earliest
reduction to practice;
[. . .]
D.C.COLO.LPtR 5(a) & (b).
The Recommendation correctly states that “[t]here is a dearth of case law in the
District of Colorado regarding D.C.COLO.LPtR 5; in fact, the Court has found no written
opinions citing this Local Rule.” Seeley Int’l Pty Ltd. v. Maisotsenko, et al., No. 21-cv-
01350-CMA-KLM, 2022 WL 3975005, *6 (D. Colo. Sept. 1, 2022). Based on the Court’s
research, this remains true today—Seeley is the only case this Court could find that
discusses Local Patent Rule 5, but it is not particularly helpful or applicable to this case.
Further, other jurisdictions’ local patent rules do not mirror Local Patent Rule 5 in either
numbering or content. See (Doc. # 271 at 8 n.3).
B. 	FEDERAL RULES OF CIVIL PROCEDURE 26 AND 37
Federal Rule of Civil Procedure 26(e)(1)(A) imposes an ongoing duty on parties
to supplement or correct their disclosures and discovery responses “in a timely manner
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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[.]” In turn, Rule 37
imposes penalties for parties who violate Rule 26(e):
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
Fed. R. Civ. P. 37(c)(1).
The determination of whether a disclosure violation is justified or harmless, for
the purpose of the rule permitting exclusion of certain undisclosed evidence, is
entrusted to the broad discretion of the district court. See Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). A district court need not
make explicit findings concerning the existence of a substantial justification or the
harmlessness of a failure to disclose. Id. (citation omitted). As stated by the United
States District Court for the Eastern District of Texas:
A court has the inherent power to enforce its scheduling orders and to
impose sanctions. Fed. R. Civ. P. 16(f). However, interpretation and
enforcement of discovery provisions of the Local Patent Rules should not
conflict with, and should harmonize with, the discovery provisions of
the Federal Rules of Civil Procedure. See O2 Micro Intern. Ltd. v.
Monolithic Power Sys., 467 F.3d 1355, 1365 (Fed. Cir. 2006). Deciding
whether late filed infringement contentions should be excluded is
somewhat similar to deciding whether evidence should be excluded for
discovery violations. It is also akin to deciding whether the pleading
deadlines of a scheduling order should be extended. Therefore, the court
will consider the kinds of factors identified as important in making these
types of decisions. See id. at 1366; Finisar, 424 F. Supp. 2d at 899.
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Ariba, Inc. v. Emptoris, Inc., No. 9:07-CV-90, 2008 WL 11348416, at *1 (E.D. Tex. Oct.
17, 2008) (emphasis added). The Tenth Circuit has held that the following factors
should guide the court’s discretion: (1) the prejudice or surprise to the party against
whom the testimony is offered; (2) the ability of the party to cure the prejudice; (3) the
extent to which introducing such testimony would disrupt the trial; and (4) the moving
party's bad faith or willfulness. Woodworker’s Supply, 170 F.3d at 993.
III. 	DISCUSSION
This Court finds that Flowco fails to prove a violation of Local Patent Rule 54 and
that there is no violation of Federal Rule of Civil Procedure 26(e). Thus, for the reasons
set forth below, the Court rejects the Recommendation (Doc. # 271) and denies
Flowco’s Motion to Exclude (Doc. # 256) in its entirety.
A. 	FLOWCO’S LOCAL PATENT RULE 5 ARGUMENT FAILS
The Local Patent Rules are meant to limit discovery to the theories of the case
that are pinned down. See supra Sec. II.A. The Court finds that Flowco’s prior art
invalidity contentions related to Well Master’s supplemental discovery responses were
anything but pinned down. In fact, as of March 26, 2024, it was still not clear to the
Court whether Flowco was making unfounded assertions about the materiality of the
Sand Viper, as Well Master insisted, or whether Flowco was being deliberately obtuse.
(Doc. # 226 at 10 n.11.)
4 The Recommendation found no proof of a Local Patent Rule 5 violation, as well, but it did not address
the parties’ Rule 5 arguments because it found that Well Master violated Federal Rule of Civil Procedure
26(e) and that the exclusion of evidence was warranted under Rule 37(c). (Doc. # 271 at 19.) The Court
therefore provides further explanation as to why there is no Local Patent Rule 5 violation in this Order.
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Flowco argues that the “Local Patent Rules are designed to ensure efficient processing
of patent litigation matters” (Doc. # 256 at 7), while simultaneously failing to
acknowledge its own failures when it comes to disclosure under the Local Patent Rules
(see Doc. # 226 at 14–17), its own delay in this case through its in partes review
petitions, and its failure to clearly articulate its invalidity contentions. As this Court ruled,
given these contradictory and potentially unfounded positions by Flowco, it could seek
clarification through conferral with Well Master or through interrogatories. (Id. at 15
n.13.) It was at that point that Well Master’s supplemental discovery responses related
to the Sand Viper became relevant. Prior to that, Well Master justifiably limited its
discovery responses to the legitimate theories of the case put before it. Once that was
cleared up in a conferral between the parties, Well Master immediately served its third
supplemental discovery responses. See (Docs. ## 234, 256 at 5–6, 260 at 6–7).
The Court finds that Flowco is not in a position to argue a “shifting sands
approach.” Flowco is also remiss to rely on Fox Factory, Inc. v. SRAM, LLC, No. 18-cv-
00130, 2019 WL 1450622 (D. Colo. April 2, 2019). In Fox, the court allowed amendment
to invalidity contentions, finding good cause to support the addition of four prior art
references to Defendants’ Final Invalidity Contentions. Not only was Fox not about
infringement contention disclosures under Local Patent Rule 5, but Flowco failed to
provide a valid explanation of good cause for its own invalidity contentions in this case.
Well Master’s stipulation in May of 2024 bypassed Flowco’s need to file a motion for
leave to amend said contentions for good cause. See (Doc. # 226 at 17).
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The Court does not necessarily agree with Well Master that, even if Flowco had
properly articulated its invalidity contentions, none of the documents in its supplemental
production would fall under the purview of Local Patent Rule 5. See (Doc. # 260 at 7–
10). However, based on the foregoing, the Court finds that Flowco has failed to meet its
burden to prove a violation of Rule 5. See Seeley, 2022 WL 3975005, at *6–7. Thus,
exclusion of Well Master’s supplemental discovery responses is inappropriate.
B. 	FLOWCO’S FED. R. CIV. P. RULES 26 AND 37 ARGUMENTS ALSO FAIL
This Court has broad discretion to determine whether a failure to disclose
evidence is justified or harmless under the Federal Rules of Evidence. See
Woodworker’s Supply, 170 F.3d at 993. It need not even make explicit findings
concerning the existence of a substantial justification or the harmlessness of a failure to
disclose. Id. In harmony with its finding that there are no Local Patent Rule 5 violations
in this case (see Ariba, 2008 WL 11348416, at *1), the Court also finds that the
Woodworker’s Supply factors weigh in favor of Well Master, further supporting inclusion
of the disputed evidence.
1. 	The prejudice or surprise to the party against whom the testimony is
offered
The Court is not convinced by Flowco’s nebulous claim of harm. In its Motion to
Exclude, ignoring its own delays and failure to articulate its invalidity theories, Flowco
merely relies on hypothetical/assumed findings of harm by citing to other cases and
stating that this case is three years old. Flowco walks a very fine line when it contends
that the Court “upheld as sufficient” its invalidity contentions in its March 26, 2024,
Order. See (Doc. # 256 at 11). The Court only denied Well Master’s first motion to
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exclude (Doc. # 127) in part as to Flowco’s obviousness contentions. (Doc. # 226 at
17), stating:
To be clear, the following invalidity contentions based on anticipation are
excluded: (1) those pertaining to Claims 9 and 13 of the ‘892 patent; (2)
those pertaining to claims 7, 8, 10, 11, and 13–16 of the ‘865 patent; and
(3) claims 4–6 and 12–14 of the ‘728 patent. If Flowco wishes to make a
third attempt to supplement its surviving invalidity contentions, it must first
move for leave from this Court and show good cause.
(id. at 17 n.15). The Court further found that “Flowco failed to provide valid explanation
of good cause as required by the Local Patent Rules” and that “Flowco ha[d] not shown
diligence[.]” (Id. at 17.)5
The Court therefore agrees with Well Master that the Magistrate Judge’s
Recommendation finds harm despite no support or proof thereof from Flowco. See
(Doc. # 276 at 7–10). Without a corroborated showing of actual harm, evidentiary
exclusion is an inappropriate remedy in view of the Tenth Circuit’s “strong predisposition
to resolve cases on their merits.” (Doc. # 276 at 10 (citing Murray v. Archambo, 132
F.3d 609, 611 (10th Cir. 1998).)
No trial date has been set in this case and it appears to this Court that, pursuant
to the modified scheduling order (Doc. # 274), there remains time for Flowco to further
amend its invalidity contentions regarding prior art. Here, too, Fox cuts against Flowco.
2018 WL 6603960, at *3 (finding that there was “ample time to address” the newly
asserted theories because expert reports were not due for another four months). If more
5 With respect to any allegation of “surprise,” the Court notes that Well Master had already provided
Flowco with a prior supplemental response to Flowco’s Interrogatory No. 1 and Request for Production
No. 1 on September 7, 2023, referring to the contents of David Green’s declaration mentioning the Sand
Viper, pursuant to Federal Rule of Civil Procedure 33(d), which had been created by Well Master in
response to Flowco’s petitions for inter partes review. See (Docs. ## 249-1, 256-1, 260 at 5–6, 276 at 7).
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time is needed, it seems to this Court that a modified scheduling order to allow such
time would address any possible harm to Flowco.
2. 	The ability of the party to cure the prejudice
Because it finds no harm or prejudice to Flowco, the Court need not discuss this
factor.
3. 	The extent to which introducing such testimony would disrupt the trial
There is no trial scheduled, so it goes without saying that this factor also weighs
in favor of Well Master.
4. 	The moving party's bad faith or willfulness
This is perhaps the most contentious factor with respect to Flowco’s Motion to
Exclude. The Recommendation finds willfulness on the part of Well Master but does not
find bad faith. See (Doc. # 271 at 18 (“On the record presented, the Court hesitates to
impute bad faith to Well Master . . . .”)). Well Master denies bad faith and Flowco does
not assert it. See generally (Docs. ## 260 at 12, 256, 263, 277). This Court agrees that
Well Master’s supplemental discovery responses do not appear to have been served on
May 9, 2024, in bad faith.
With respect to willfulness, as explained throughout this Order, the Court finds
that any willfulness on Well Master’s part in withholding the information disclosed in its
third supplemental discovery responses was justified as outside the scope of discovery
and premature given Flowco’s defective invalidity contentions. Moreover, even if Well
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Master’s withholding was not “substantially” justified, the Court finds no harm to Flowco
as explained in Section III.B.1., above.6
Well Master represents that it “would have never agreed to [the Sand Viper]
stipulation had it known of Flowco’s intention to bring the [present] Motion [to Exclude].”
(Doc. # 276 at 2.) In fact, the parties stipulated to limited supplementation of Flowco’s
invalidity contentions and amendments to Flowco’s counterclaims to avoid further
motions. See (Doc. # 234). The Court therefore finds that this factor also favors
inclusion of Well Master’s third supplemental discovery responses.
IV. 	CONCLUSION
For the foregoing reasons, the Court ORDERS that Defendant Flowco
Production Solutions, LLC’s Motion to Exclude (Doc. # 256) is DENIED in its entirety. It
is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Kathryn A. Starnella (Doc. # 271) is REJECTED as an order of this Court.
DATED: March 25, 2025
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge
6 The Court also finds that the instant case is distinguishable from patent cases cited in the
Recommendation to support Rule 37(c) exclusion. See (Doc. # 271 at 8–9). See, e.g., Teashot LLC v.
Green Mountain Coffee Roasters, Inc., No. 12-cv-00189-WJM-KMT, 2014 WL 485876, at *6–8 (D. Colo.
Feb. 6, 2014) (plaintiff did not disclose its doctrine of equivalents infringement theory until the close of fact
discovery in an expert report); Integra LifeSciences Corp. v. Hyperbranch Med. Tech., No. 15-819-LPS-
CJB, 2018 WL 3814614, at *3 (D. Del. Mar. 23, 2018) (plaintiff changed the priority date for a patent less
than a month before trial),
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