I wanted to flag a couple of outstanding recent analyses on the new standard of discovery “proportionality” that contain helpful arguments, analysis, and research including cites to recent district court cases apply the new standard. Whether you’re discover-ing or being discover-ed, they’re good stuff.
It’s not EDTX, but it’s useful. A judge in another district issued an opinion in a patent case last week setting the appropriate boundaries for venue discovery, and I thought it bears reviewing in light in Judge Gilstrap’s recent opinion on the subject for two reasons. First, it tells us what parties are seeking, and second, it tells us what courts are allowing.
It sometimes happens that after plaintiffs move to transfer venue, or to dismiss for lack of personal jurisdiction or improper venue (there’s a secret handshake for those of us that realize which of these motions really doesn’t as a practical matter, matter) the plaintiff seeks jurisdictional discovery. Typically parties work out the content and timing of these issues, but every so often the cart gets in the ditch, and the court has to be called in to resolve the disagreements. That’s what happened in this case – and the specific issue was the temporal scope of jurisdictional discovery. In this case
Readers may recall that last fall I did an extensive post on the history of discovery standards in the Eastern District of Texas, beginning with Dan Quayle (no, that’s not a joke). At that time, an extensive survey of 2016 Eastern District of Texas cases – including patent and nonpatent cases, as well as published in unreported opinions, indicated that with one Implicit exception (now that is a joke) no case appeared to apply the new “proportionality” test added to FRCP 26 by the 2015 amendments to the Federal Rules of Civil Procedure. A few cases quoted the rule and ruled specific discovery in or out, but only Judge Gilstrap’s Implicit opinion explicitly referenced the permitted discovery as being proportional to the needs of the case under the new standard.
At the time I testified before the advisory committee on the 2015 amendments, and through their enactment, I was of the opinion that the addition of the proportionality test was going to provide parties with a significant tool to delay or frustrate discovery previously considered permissible, especially in smaller cases, and in particular in the “bulk filer” or “high-volume” plaintiff cases, requiring parties to repeatedly seek court assistance to obtain discovery. But as the absence of court decisions applying the proportionality test indicates, that has not been the case, and parties have been able to resolve any questions regarding the proportionality of discovery without needing to resort to the court.
But when they do, it is worth noting. Recently, an Eastern District of Texas judge addressed a discovery issue in a patent case and explicitly referenced the proportionality test in his decision, as I analyze below.
Defendants in a patent case filed an Emergency Motion to Secure Trial Testimony of Unavailable Witness seeking leave to take a deposition in Hong Kong of a single witness. The Court granted the motion, with some caveats and observations.
Plaintiff sought to compel the defendants to produce information regarding their post-incident investigation. Judge Crone granted the motion in part, as set forth below, and provides a useful analysis of some not often encountered exceptions (and exceptions to exceptions) to the attorney work product doctrine dealing with witness statements.
Plaintiffs moved to quash subpoenas sent to third parties seeking bank records, arguing that they sought disclosure of confidential and proprietary business and personal information that was not relevant. Judge Mazzant agreed that the bank records were relevant to Plaintiffs’ damages claims, noting that comprehensive protective orders sufficiently assure the confidentiality of documents containing trade secrets or other confidential commercial information. Click through for a copy of the Court’s order. diamond 006