Although we have a "default standard" for discovery in DE, there's a lot of leeway for deviation based on the facts of the case. More (or fewer) custodians, more (or less) metadata, search terms that call eldritch horrors from their squalid caches -- pretty much anything is on the table.
Pretty much.
There's always a line somewhere, and I think we found it last week in Acceleration Bay, LLC v. Amazon Web Services, Inc. C.A. No. 22-904-RGA-MPT (D. Del. Nov. 22, 2022). The defendant, AWS, wanted to include the following passage in the ESI Order:
Acceleration Bay shall not seek email discovery relating to infringement or damages, except that Acceleration Bay may seek email discovery from AWS and Amazon.com regarding the following two topics:1) non-privileged, non-work product email communications between AWS or Amazon.com and third parties regarding Acceleration Bay or the Asserted Patents; and 2) AWS's or Amazon.com's internal, non-privileged, non-work product email communications regarding Acceleration Bay or the Asserted Patents.
Unsurprisingly, the plaintiff opposed -- not least because this particular provision was asymmetrical. AWS argued that more fulsome email discovery was not necessary because "information relating to infringement, damages, and validity are more likely to be contained in the parties’ respective contention disclosures and discovery responses, as well as documents to be produced such as sales figures and technical documents relating to the functionality of the accused products."
This is a fair argument as far as it goes, but it seems to be largely true of almost any patent case. Judge Thynge seemed to agree and struck the provision, noting:
Defendant offers no basis to limit the scope of e-mail discovery to specific "topics" beyond the five (5) custodians and five (5) search terms to which the parties have already agreed. Defendant has argued that document production will provide Plaintiffs with the discovery sought and that e-mail is of "limited value" in documenting these topics. In view of what Defendant maintains will be an especially burdensome collection and production process fraught with "duplicative" search results, Defendant essentially proposes to "pre-screen" the ESI searches by removing all e-mail related to specific topics before carrying out the searches. In the court's experience, ESI platforms routinely address duplication and have the technical ability to find, identify, and to withhold production of duplicated e-mails and attachments. In view of the fact that discovery has not yet begun, Defendant's claims of burden are premature and speculative
It's tough to imagine the case where such a provision would be allowed, but I'd have to imagine that it would require a pretty exacting showing on burden. I'll let you know if we ever see this particular proposal rear its head again -- I'm sure it's something every defendant will want.
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