We're still catching up from our two-week break here at IP/DE, and this is another item on our list. Last month Magistrate Judge Fallon issued updated discovery dispute procedures (attached below).
The most common question when these come out is: what changed? The judges don't usually issue redlines, and of course, the old procedures normally disappear from the website immediately (although they are usually available via the Wayback Machine).
Here, the procedures are largely the same, with some minor additions:
- The required proposed order must list relief for each dispute.
- Each party should attach only the relevant pages of cited exhibits (this is becoming the common practice for briefing in many cases, these days—although Judge Fallon did not ask the parties to highlight the relevant material, as some of our judges do)
- For disputes about discovery responses, a requirement to attach the relevant requests and responses—this matches, verbatim, the same requirement in Judge Burke's discovery dispute procedures.
The new procedures also dropped Judge Fallon's prior requirement that parties request permission before seeking relief (sanctions) under FRCP 37. That makes sense, as Rule 37 is a common mechanism for relief in discovery disputes, and I'm not sure parties always followed the prior procedures.
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