Litigation: Managing discovery in asymmetrical lawsuits

Proper structuring of discovery can help to minimize costs

This is the third 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, and the second article discussed strategies for avoiding discovery through early motion practice.

One of the main themes of this series of articles is managing asymmetrical litigation by avoiding unnecessary expenses and focusing on substantive resolution. The previous article in this series discussed strategies for avoiding the costs of discovery entirely through early dispositive motion practice. Where such motions do not end the action, it is critical to implement strategies for structuring discovery to minimize its costs when it cannot be avoided altogether.

Defendants also should consider the possibility of stipulating or conceding certain factual issues in exchange for avoiding or severely limiting discovery on those issues. For example, in a patent infringement case where there are very strong prior art invalidity defenses or no credible non-infringement defense to certain particular elements of asserted claims, conceding that an accused product operates in a certain manner may be a way to avoid the expense of broad discovery into the design of the accused products. This will allow for a straightforward path to early and inexpensive resolution of validity, or non-infringement based on other elements of the asserted claims.

Another approach not often employed by defendants is to seek a fact discovery period that is as short as practically possible. This approach will allow defendants to get through discovery as quickly as possible and be able to focus on dispositive motion practice. At the same time, smaller-sized plaintiffs hoping to extract a quick settlement will privately cringe at being forced to quickly conduct discovery, but often will be forced to agree to such requests to avoid signaling weakness to defendants and the court.

Contributing Author

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Aaron Frankel

Aaron Frankel is an associate with Kramer Levin Naftalis & Frankel's Intellectual Property Group. His practice includes intellectual property litigation, transactional matters and patent prosecution....

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Contributing Author

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Mark Baghdassarian

Mark Baghdassarian is a partner with Kramer Levin Naftalis & Frankel LLP’s Intellectual Property Group. His practice involves complex patent infringement actions involving satellite radio...

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