In Alexsam, Inc. v. IDT Corp., Nos. 2012-1063, 2012-1064 (Fed. Cir. May 20, 2013), plaintiff alleged that defendant infringed its patent relating to a system for activating and using prepaid phone cards. During discovery, the court ordered defendant to disclose certain information about its product in response to plaintiff’s interrogatories, and defendant’s counsel represented that it had. At trial, it was revealed that, in fact, defendant had not made such disclosures. Consequently, the court imposed sanctions under Rule 37, and instructed the jury that the court had deemed defendant’s product to have infringed plaintiff’s patent, and the jury need only consider issues concerning defendant’s invalidity defense and damages. The jury found in favor of plaintiff on the remaining issues and awarded more than $9 million in damages. The Federal Circuit affirmed. Applying Fifth Circuit law, the court noted that while “severe sanctions” such as dismissal require a showing that the misconduct was willful or in bad faith, the standard for “less severe sanctions” requires only that the sanction be “just and fair.” The court concluded that the sanction in this case fell within the “less severe” category because defendant was still permitted to present evidence of its affirmative defense of invalidity, and plaintiff was still required to prove damages. Finding that defendant had made false statements to the court concerning its disclosures and that it had received ample warning of sanctions, the court determined that the trial court’s sanction was just and fair.