Last month we wrote about how delay is a motion killer. Procrastination is a problem most of us litigators share. But if you want your discovery motion granted, it's best to move now not later. Keep up the pressure.
We got another example of that yesterday in Tot Power Control, S.L. v. LG Electronics Inc., C.A. No. 21-1304-MN (D. Del. Apr. 23, 2024) (unsealed May 7, 2024). Tot is an opinion by Judge Fallon on several discovery motions, and two of them were denied due to delay.
First, the Court denied a request to compel plaintiff to produce communications related to valuations it received. Back in June 2023, the plaintiff had agreed to respond to the relevant RFP, but only "excluding e-mail." But fact discovery had closed by the time of the opinion, and in its opinion denying Defendant's request, the Court cited defendant's delay in pushing back:
To the extent that Defendants seek email communications regarding the valuations, they have not identified any applicable discovery request that encompasses such communications. (D.I. 152, Ex. C at 1) Defendants requested "[a]ll Documents related to valuation of the Asserted Patents" during discovery, and Plaintiff agreed to produce responsive documents "excluding email" in its response served ten months ago in June of 2023. (D.I. 150, Ex. 1 at 49) Defendants do not explain how the 30(b)(6) testimony on certain valuations and the subsequent production of those valuations open the door to email correspondence at this stage of the case, following the close of fact discovery on April 1.
Id., ¶ 4. Earlier in the same section, the Court also cited an E.D. Pa. case denying discovery served too close to the fact discovery deadline:
See Cropper v. Stanley Black & Decker, Inc., 2022 WL 11471100, at *3 (E.D. Pa. Oct. 20, 2022) (explaining that "proportionality concerns outweigh[ed] the probative benefit of the sought-after" discovery because it was requested on the eve of the fact discovery deadline, and the plaintiff had already taken extensive discovery on the subject).
Id., ¶ 2. The Court again cited the moving party's delay in denying discovery to plaintiff, who had waited too long to clarify its discovery requests:
Plaintiff requests the production of transfer pricing agreements regarding the sales of accused products between LGE Inc. and LGE USA, arguing that production of these agreements is necessary for Plaintiff to accurately calculate the profit each Defendant made from sales of the accused products in the United States. . . . According to Plaintiff, this request is responsive to Request for Production Nos. 10, 78, 86, and 99. . . . But none of these requests expressly or implicitly encompasses transfer pricing agreements. Plaintiff's delay in requesting the production of transfer pricing agreements via email on March 1, 2024, years and months after the discovery requests were served, further supports a conclusion that these requests for production did not contemplate the production of transfer pricing agreements at the time they were served.
My takeaway is that the longer you wait to serve your discovery requests, clarify those requests, and bring a dispute, the more you are putting yourself at risk of denial.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
