Judge Fallon ruled on what is, as near as I can tell, a totally novel discovery dispute earlier this week.
The defendants in Chervon (HK) Limited v. One World Tech., Inc., C.A. No. 19-1293-VAC(!), were scheduled to depose several of plaintiffs witnesses and plaintiff learned -- its unclear how from the papers -- that defendant intended to use some previously untranslated Chinese documents as exhibits as exhibits. Plaintiffs' thus moved to compel the defendants to produce certified translations of these documents in advance of the depositions.
Judge Fallon denied the motion, noting that "the hardship in selecting all deposition exhibits well in advance of the deposition" needed to be "balanced . . . against the importance of maximizing …
The question of whether a defendant has to produce foreign sales information seems to come up more frequently these days in patent cases, with plaintiffs coming up with new ways to reach—or at least attempt to reach—those sales in U.S. patent cases.
Yesterday, Magistrate Judge Hall resolved a dispute about whether a plaintiff is entitled to discovery on foreign sales. She held that even though their foreign-sales damages theory appeared shaky, the foreign sales discovery was warranted:
ORAL ORDER: Having reviewed the parties' letters in connection with the motion for teleconference to resolve discovery dispute, and having heard oral argument via teleconference on March 7, 2022, IT IS HEREBY ORDERED that the second and third …
The Delaware Default Standard for Discovery, discussed on these pages before, contains both patent- and non-patent-specific discovery rules and limits. Among them are a six-year limit on certain discovery in patent cases and a 10-custodian limit for electronic discovery. When the Default Standard is incorporated into the scheduling order (as it often is), its provisions are no longer guidelines or default provisions, but instead are requirements the parties must abide by, and which cannot be changed absent a showing of good cause.
Last week, Judge Burke resolved a number of discovery disputes in U.S. v. Gilead Sciences, Inc., C.A. No. 19-2103-MN, using the Default Standard (incorporated by reference into Judge Noreika's scheduling order) to guide his analysis.
First, Judge Burke denied the government's request for documents regarding manufacturing costs and other factors considered by defendant Gilead in pricing decisions in 2004:
The Court's Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI") (the "Default Standard") sets a presumption that discovery from six years or more before the case's filing will not be permitted. . . . Here, in the few sentences of argument on this point in its briefing, . . . the Government does not provide enough information to establish the requisite good cause. During the teleconference, the Government suggested that good cause was established because it was only in 2004, and at no time thereafter, that Defendants had extensive discussions relating to the factors contributing to Truvada pricing decisions. However, that assertion is merely attorney argument, as there is no record evidence before the Court supporting such a conclusion.
Judge Burke also limited document discovery regarding Board of Directors meetings where pricing or the patents-in-suit were discussed to six years prior to the complaint, but did permit some discovery on those topics within the six-year period. ...
One of the oddities of beginning a case is the somewhat tortured interaction between Rules 26 and 16. Under Rule 26(d), most discovery can't be served until after the parties have their initial scheduling meet and confer. That conference, discussed in Rule 26(f), should take place "as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Rule 16(b), in turn, requires the court to issue the scheduling order:
as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served …
Under the procedures, instead of the parties engaging in lengthy briefing and the Court issuing a detailed opinion on a discovery issue—a process can take months—they meet-and-confer and raise it with the Court. The Court then schedules a quick hearing and sets deadlines for short discovery dispute letters from the parties.
After the Court receives the parties' letters, it either issues a short "oral order" on the docket resolving the dispute, or issues an order at the hearing, with the transcript serving as the opinion. This saves time for everyone involved, and is one of the methods that the Court uses to manage its …
Yesteday, Judge Stark issued an opinion on various discovery disputes and objections in Natera, Inc. v. ArcherDX, Inc., C.A. No. 20-125-LPS (D. Del. Sept. 21, 2021). Here are a few helpful nuggets from the opinion:
He declined to order defendants to respond to 30(b)(6) topics like the following, except for identifying "all persons substantively involved" because that language is "vague and overbroad":
The research, development, design, testing and validation of each of Your Accused Products, including when they were developed and identity of all persons substantively involved in their design and development.
He ordered defendants to produce a corporate witness on the following topic, including an order to describe contemplated and future filings with the …
There was an interesting discovery dispute order from Judge Burke yesterday. In Sysmex Corporation et al v. Beckman Coulter, Inc., C.A. No. 19-642-RGA-CJB (D. Del.) (a case we've previously discussed), due to COVID issues, defendant has been unable to depose the inventor—an employee of plaintiff—since the deposition was noticed over eight months ago.
Now, fact discovery is closed, summary judgment motions are due today, and the case is scheduled for trial in February 2022—but the plaintiff still hasn't provided the inventor for a deposition.
The defendant wisely moved to stay the case pending deposition of the inventor. In ruling on the motion, ...
PLEASE STAND BY . . . while we figure out why we only produced 13 e-mailsRCA
Yesterday, Magistrate Judge Fallon granted a motion for sanctions against One World Technologies, Inc., a defendant in a patent action, for failing to produce the bulk of its e-mail until 13 months after the plaintiff's initial request.
Defendant One World initially produced only 13 e-mails in response to plaintiff's requests, served back in April 2020. According to a later declaration of counsel, One World's attorneys had received multiple gigabyte's worth of .pst files containing e-mail from the agreed-upon custodians. But they found those files to be corrupted, and they relied on their clients' determination that all but 134 of the e-mails were unrecoverable. …
Here's a new one: A defendant in Natera, Inc. v. ArcherDX, Inc., C.A. No. 20-125-LPS (D. Del.) wanted to delay the trial to coordinate the schedule with another case involving an overlapping patent. So it filed a letter asking for leave to file a 3-page letter briefs, or to have a teleconference:
Given the parties have been unable to agree on an appropriate approach for coordination of both cases, we respectfully request leave to submit the competing views to Your Honor during a status conference or 3-page letter briefs.
Chief Judge Stark denied the request, directing the parties to file a motion instead:
ORAL ORDER: Having reviewed the parties' letters . . . relating to [the …
It seems like litigation funding is becoming a more active area for discovery disputes lately—a trend that is likely to continue after Judge Connolly granted a dismissal based on a litigation funding agreement late last year. SeeUniloc USA, Inc. v. Motorola Mobility, LLC, C.A. No. 17-1658-CFC, 2020 U.S. Dist. LEXIS 244512, at *25 (D. Del. Dec. 30, 2020).
Last week, Judge Burke confirmed a previous denial of litigation funding discovery, offering some additional thoughts:
ORAL ORDER: The Court, having now reviewed the parties' supplemental letter briefs . . . in which Defendants ask the Court to reconsider its March 2, 2021 Order . . . , hereby notes as follows: . . …
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