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.

Although scheduling orders often provide a last date for summary judgment motions to be filed (typically after the close of fact and expert discovery), there is no reason that an appropriate summary judgment motion cannot be filed along with a defendant’s answer or in advance of the initial case management conference. Such motions should be based on purely legal issues, for example, interpretation of a license agreement or, in the patent litigation context, interpretation of a patent claim that would be dispositive in the matter.

Care also should be taken to explain to the court why early resolution is appropriate and why discovery is not necessary to resolve the motion. Such a summary judgment motion should be accompanied by a request to stay discovery while the motion is pending. Some plaintiffs, not wishing to waste resources on a case or on a particular defendant (among many) that ultimately will be unsuccessful and hoping that a defendant will settle if his summary judgment motion is denied, may agree to the requested stay.

A modified version of this strategy may be appropriate in cases where there are a few discrete factual issues that would need to be investigated before summary judgment motions can be filed. Let’s take one of our recent experiences. A company was accused of infringing a patent directed to detect truck roll-over risks by comparing a left-side load sensor with a right-side load sensor. The accused product, however, had only a single-load sensor, giving rise to an open-and-shut, non-infringement defense.