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The Delaware Default Standard for Discovery, which has been around in its present form for about a decade now, applies to some extent in every Delaware patent case. Given how frequently discovery issues are litigated in Delaware, I was somewhat surprised to see a new ruling from Judges Connolly and Hall clarifying a bit of the Default Standard that I don't believe has ever come up before.

In addition to describing the initial exchange of contentions and the format for ESI production, the Default Standard also sets a presumptive limit on the time period for discovery:

Absent a showing of good cause, follow-up discovery shall be limited to a term of 6 years before the filing of the complaint, except that discovery related to asserted prior art or the conception and reduction to practice of the inventions claimed in any patent-in-suit shall not be so limited.

Default Standard Section 4(e).

The question that arose this month in LEO Pharma A/S et al v. Glenmark Pharmaceuticals Ltd., C.A No. 20-1359-CFC-JLH, D.I. 60 (D. Del. May 25, 2021), was what is "follow-up discovery"? The defendants—who were seeking additional documents from before the 6-year period—took the position that "follow-up" discovery only included "discovery occurring later in a case, e.g., discovery: (i) resulting from reopening fact discovery; or (ii) flowing from issues revealed by initial discovery, or from an event such as a court filing or deposition." Id. D.I. 45 at 1. Under this reasoning, initial RFP's could seek documents from any time period without the need to show good cause.

Plaintiff, on the other hand, took the position that "follow-up" discovery encompassed everything other than the initial contentions referred to in Paragraphs 3(a) and 3(b) of the default standard. Id., D.I. 60 at 1. Judge Connolly found Plaintiff's interpretation "spot-on," affirming Magistrate Hall's ruling that the defendant needed (and had failed to) show good cause to seek discovery outside of the 6-year time period in it's initial discovery requests.

You learn something new every day.

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