Motion for Venue Discovery
Plaintiff sought “targeted venue discovery” based on arguments made by the defendants at a recent hearing on the defendant’s motion for reconsideration of denial of their prior venue motion.
Discovery
Cross-motions for Sanctions Denied
The parties filed cross-motions for sanctions arising out of conduct in a deposition, resulting in an order from Judge Albright.
Motion to Compel Prior Contentions & Expert Reports. With Debris.
The substance of the motion deals with when a party’s prior contentions and expert reports dealing with the same patents should be produced, but the order comes with a tasty procedural holding dealing with discovery motion practice as well.
FRCP 33(d) Responses
Plaintiff moved to compel a narrative response to an interrogatory in a patent case pending before Judge Kernodle in Tyler. The subject matter was revenues and profits, and the order provides an example of when an answer can rely on FRCP 33(d), and when further information is required to be provided.
Permission v. Forgiveness
What we referred to in my time in Waco as the “Baylor Rule” was to ask forgiveness, not permission (this might have had something to do with adult beverages in law school, so “Baylor” really should have a footnote appended in this context). But in case there was ever any doubt, that rule doesn’t apply in federal court, may God have mercy on your soul if you assumed it did, and here’s the citation.
Unopposed Motions to Amend Docket Control Orders
I am asked on a regular basis whether a motion will be granted “automatically” if it is agreed or unopposed. The answer is a lawyerly “it depends”. While judges say that they are in the business of resolving disputes, not agreements, there are exceptions, and as here, they usually seem to deal with moving dates in a docket control order.
The Offensive Use of Leverage
The issue presented in this case was to what extent parties can use proceedings in a district court “as a mere tool to better posture their positions” with regard to other proceedings, for example in proceedings before the PTAB. The answer was pretty emphatic.
Deposition Location/Motions for Reconsideration
Fair warning – my January 2019 celebrity crushes are Jaylon Smith and Marie Kondo, so you may be seeing somewhat strained metaphorical references to both. I think that Marie Kondo would be terribly frustrated by civil litigation because orders often spark joy only in part. In cases like this one, it may be because the court is addressing both a substantive issue – do I get what I’m asking for – and a procedural one – did I ask for it correctly? So let’s see if the request for overseas depositions sparked joy for the Court.
More Proportionality; Motion to Compel Sales Information Granted in Part
This is an order resolving a motion to compel on damages issues in a patent case. At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products. The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.
Proportionality Finally Gets Used in a Discovery Order
Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied. Can you get discovery into your former opponent’s disposition of assets? The answer is yes, but not prior to when you made your claim. Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.