A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: FRCP 26

Another Order to Produce Litigation Funding Discovery—This Time Against What Looks Like a Practicing Entity

Andrew E. Russell, Dec. 5, 2022
Litigation Funding Discovery Dispute

Money
Pepi Stojanovski, Unsplash

Last week, Chief Magistrate Judge Thynge issued an opinion addressing a motion by accused infringers to compel the patentee to produce litigation funding discovery and opinion letters relating to the patents-in-suit.

While it involves litigation funding discovery, this case is a bit different from the recent Mavexar hearings. Here, the patentee is MHL Custom, Inc. who, it appears, is a practicing company and not an NPE. Beyond that, the case is still active (unlike some of the Mavexar cases) and the discovery is sought by the defendant, not the Court itself. In other words, this is a more typical ruling.

But the opinion is still notable. The Court granted the accused infringers' motion for three categories …

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Damages Computations and Contentions Must be Specific, Even Before Expert Opinions

Emily DiBenedetto, Aug. 23, 2022
Damages Initial Disclosures

Damages
Mick Haupt, Unsplash

If the other side is giving you spotty details on damages during Rule 26 initial disclosures, we may have a case for you. Judge Williams hasn’t issued opinions from the bench yet, but this Special Master opinion from last year challenges the “we’ll wait for expert reports” excuse with respect to damages contentions.

In TQ Delta, LLC v. DISH Network Corp., C.A. 15-614-RGA (D. Del. Oct. 2021), defendants sought to compel plaintiff to supplement its initial disclosures and contentions on damages, and Judge Williams granted the motion.

Rule 26(a)(1)(A)(iii) Computation of Damages

Rule 26(a)(1)(A)(iii), requires “a computation of each category of damages claimed by the disclosing party . . . .” Plaintiff said …

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Judge Bibas: "Deadlines are not suggestions. Litigants must respect them."

Andrew E. Russell, July 19, 2021
Substantial Completion FRCP 26

Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

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Another Day, Another Doctrine of Equivalents Argument Excluded

Andrew E. Russell, Feb. 1, 2021
Contentions Expert Discovery

Even when plaintiffs know of the potential weak spots in their infringement cases, they sometimes fail to address DOE until too late, or they offer a DOE analysis so weak that it gets excluded or wiped out by summary judgment.

That's what happened last week, when Chief Judge Stark struck a DOE opinion after a plaintiff tried to squeak by on the idea that its late DOE argument should be permitted because it never affirmatively disclaimed DOE:

Arendi's passing reference to DOE in its complaints followed by its lack of affirmative disclaimer of DOE theories (see, e.g., C.A. No. 12−1595 D.I. 238 at 5) ("Arendi has never asserted that its claims were limited to literal infringement") does …
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Chief Judge Stark Strikes Expert Opinions Under Pennypack

Andrew E. Russell, Oct. 21, 2020
Expert Discovery Motion to Strike

Pennies.
Pennies. Mark Bosky, Unsplash

I always find it interesting to see what kinds of facts that can succeed in a motion to strike. As I've mentioned, motions to strike in the Third Circuit are governed by the Pennypack factors, which can be tricky to meet and often favor lesser remedies (although the Court does strike things).

Here is what it took to warrant striking portions of an opening infringement report Arendi S.A.R.L. v. LG Electronics, C.A. No. 12-1595-LPS (D. Del.):

  • Disclosing infringement contentions against five new products for the first time;
  • Relying on previously undisclosed evidence;
  • Doing so in the 8th year of a case (albeit one currently without a trial date); …
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