Typically, if you want know how much the opposing counsel is spending on a case, you can come to a rough estimate based on how much they seem to be filing. Alternatively, you can just ask, which usually goes something like this:
Q. So . . . uh, how much are you spending?
A. None of your beeswax nerd.
Fin.
Over the summer, however, there was a rather unique case where the Court ordered the production of documents showing the plaintiffs' costs of litigation thus far and future estimates.
It started with an offhanded request in a discovery dispute letter. The defendant requested production responsive to RFPs on litigation funding documents generally, which they claimed were "relevant to damages and, as this Court has found, for purposes of cross-examination about bias." Oasis Tooling, Inc. v. GlobalFoundries US Inc., C.A. No 22-312-CJB, D.I. 184. The briefing on the issue was no more than a quarter-page.
Judge Burke granted the motion—which at this point clearly implicate litigation costs—in a brief oral order. Id., D.I. 211. Thereafter plaintiff produced the litigation funding agreement (redacted to remove the expected spend at various case milestones) but refused to produce the actual invoices or provide an overall amount paid to date.
Hence another discovery dispute aimed at "enforcing" the Court's earlier ruling on the motion to compel. Judge Burke granted this motion, in part, and ordered the plaintiff to reveal the amount spent on the litigation to date:
based on the structure of this particular litigation funding agreement, you need to know how much the litigation funder has contributed to have a full understanding of how much, in fact, the principal stands to gain from a recovery in the case. So I find the information is relevant.
Oasis, C.A. No. 22-312-CJB (Tr. of Sept. 6, 2023 hearing).
(Eds. Note. this thing was a real bear to track down. This was, conservatively, the 8 millionth discovery dispute in this case and it took me half an hour to figure out which order went with which. Then it referenced a ruling on a transcript that's not public. I had to pull the above from a motion to redact that transcript—more on that below. Who's not a real journalist now Boat News!)
It's tough to make out from the redacted transcript, but it looks like the issue here was that any recovery by the plaintiffs' principal would be offset to some extent (or in some circumstances) by the litigation costs paid by the funder, hence the potential relevance to the extent of bias.
In case you're wondering, I stumbled upon this weirdo case because the plaintiff later moved to compel the defendant to produce their litigation costs to date. Apparently there were some third party manufacturers who'd agreed to indemnify the defendants and plaintiffs. Plaintiffs argued that they should be able to know the defendant's costs to weigh the potential bias those third party witnesses might have. Classic Goose v. Gander stuff.
The Court was not impressed with the parallel.
In its opening brief, aside from explaining that there are indemnification provisions in contracts between the three relevant EDA tool providers ("EDA Providers") and Defendant, and baldly stating that this information would be relevant as evidence of "the EDA Providers' potential bias" were their representatives to testify at trial, Plaintiff did not actually explain, in any kind of particular manner, what its argument relating to bias actually was. Only in its reply brief did Plaintiff attempt to make that argument, and there, it stated that "if the EDA [Providers] are facing potential liability in the event [Defendant] is found to infringe through use of their products, that liability creates an economic interest that is relevant to bias[.]" (D.I. 292 at 1) The Court agrees that this is a decent argument relating to the EDA Providers' potential bias. But that argument does not seem to have anything to do with Defendant's actual or projected "spend" on this litigation; instead, it seems like it has to do with the amount of damages that Plaintiff might recover in this litigation. So the Court does not understand how the sought-after discovery is said to be relevant.
Oasis, C.A. No. 22-312-CJB, D.I. 324 (D. Del. Nov. 29, 2023) (Oral Order)
The distinction appears to be the "specific structure" of the plaintiffs' funding agreement. Something to keep in mind next time you want to know the other sides' secrets.
TTFN.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
