This is the second article in a series about managing asymmetrical litigation. The first article described these David versus Goliath situations and some of the unique issues that they present.
As discussed in the first article in this series, the key to managing asymmetrical litigation is avoiding unnecessary expenses and focusing on substantive resolution. Unfortunately, discovery often can be expensive, and it typically takes place early in a litigation, before opportunities are presented for substantive resolution, even where a defendant has a very strong defense that does not require any discovery to present. Savvy plaintiffs have used the costs of discovery, and document production in particular, to extract nuisance value settlements before defendants have an opportunity to present these defenses. While the next article in this series will discuss how to structure discovery to minimize the costs and risks of document production, this article proposes strategies for avoiding discovery entirely in cases where you have very strong threshold defenses through early summary judgment.
The plaintiff, however, wanted to verify that the accused product really only had a single-load sensor. As it would not be feasible to move for summary judgment without giving the plaintiff some opportunity to test this issue, the defendant sought to provide the plaintiff with limited discovery on the issue. After some squabbling between the parties as to whether to stay general discovery, the parties ultimately agreed to do so after the court expressed concern “here, where a non-practicing entity has sued a large number of defendants, the defendants will be inclined to settle with plaintiff merely to avoid the costs associated with discovery, regardless of whether they believe they have a legitimate defense.”
The defendant then proceeded to provide the plaintiff with a limited document production and a single deposition on the issue. After this narrow discovery confirmed that there was no plausible theory of infringement, the plaintiff dropped its claim. Had it not, the defendant would have been in position to file a dispositive motion without having undergone full discovery.