I came across an interesting discovery dispute transcript that hit the docket last week in Peloton Interactive, Inc. v. Echelon Fitness, LLC, C.A. No. 19-1903-RGA (D. Del.).
Plaintiff Peloton had asserted the patents-in-suit against another defendant in another action in E.D. Tex., and ultimately settled that casein part by buying the defendant's business for $24.5m.
The defendant here, Echelon, asked plaintiff to produce various communications related to that previous litigation and sale, including communications among counsel.
Plaintiff initially refused, until defendant brought a motion to compel; then plaintiff agreed in exchange for withdrawal the motion. But plaintiff never produced the documents.
Defendant moved again, noting the prior history. The Court ordered production:
THE COURT: All right. Okay. So, basically Echelon wanted Flywheel documents which include correspondence between Peloton's counsel, on the one hand, and Flywheel's counsel on the other hand relating to the Flywheel settlement and the Flywheel declaration.
I'm going to grant that request. It's limited to outgoing and incoming communications with the counsel for the other side, so it shouldn't raise a lot of privilege issues. . . . And I think it seems to be very relevant to the issues that Echelon keeps raising about, you know, the nature of the Flywheel settlement and the Flywheel documents.
The Court also ordered production of the other materials:
I'm also going to order that the term sheets and drafts of the Peloton Flywheel agreements be produced, that the due diligence concerning Peloton's acquisition of the Flywheel at-home bike business, including a list of assets and evaluations by Peloton or its bankers be produced. And that the documents relating to the preparation and filing of the Flywheel declaration be produced.
Thus, a total victory for defendants.
Plaintiff tried to escape the ruling by arguing that it had already produced the documents—which is usually an "I win" button in a motion to compel argument.
But because of plaintiff's prior history, the Court did the opposite of what usually happens. It ordered production regardless:
THE COURT: All right. Well, Ms. Saba, I say this without prejudice to the question of whether or not you've already produced these, but given that the basic Peloton playbook, as I can see it, is not to produce stuff until it's threatened to come to me and then to produce it immediately before, I want the Order to be in place telling you to do this.
And, also, as you've noted, you will need to get up with Peloton's former counsel, even if they don't represent Peloton anymore. But your statement that you've produced most of this is noted.
"We Already Did That" Is Usually an "I Win" Button
Often, in discovery disputes to compel, if one party asked for documents and the other side says they've already produced all responsive documents, or that they will do so, the Court will deny the dispute as moot. It can sometimes be an instant win for the non-moving party, at least in the short term.
If you are the moving party, it's a good idea to plan for this, as it may well come up for the first time on the call. Make sure to have a ready argument about why what they have already produced can't be everything. And, when you move to compel production of X, make sure they don't get away with saying "we already produced Y."
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