Civ Pro (or Federal Rules of Civil Procedure (FRCP) for non-lawyers and non-law students out there) was one of my least favorite law school courses and one I didn't appreciate much until I became an attorney. It's one of those classes where you don't really understand the context and the implications of the rules until you see it in action.
Like many rules, FRCP is a living document and its rules change from time to time. Recently, there were changes to rules 26, 37, and 84. These rules, while not directed specifically towards patent litigation cases, help curb the activity of non-practicing entities (NPEs) or "patent trolls." In other words, good news for defendants.
Let's take a look at each of the rules and determine what it means for plaintiffs and defendants in patent litigation cases.
Rule 26(b)(1)- Duty to Disclose; General Provisions Governing Discovery
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
If you don't know anything about discovery, know this- It's expensive. Why? Because you have to search for and produce potentially hundreds and hundreds of documents, files, recordings, and other types of information and then comb through it all. If you receive discovery from the other party, they give no consideration into how they present it to you. Typically, you'll get big boxes of papers and flash drives that are not organized in any shape or form and you have to sit in some windowless room and go through each one with a buddy.
So before, when basically anything relevant to the case was discoverable, it took a lot of resources- which put a lot of burden on defendants (even if they didn't go through the entire litigation process). Now, discovery is limited to the proportional needs of the case. This means that defendants should still be ready to produce some information, but NPE plaintiffs can't abuse the discovery process.
Rule 37(e)- Failure to Make Disclosures or to Cooperate in Discovery
Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
The new rule makes it more difficult to seek sanctions for a party's failure to preserve electronically stored information, unless the party intentionally destroyed the information. The old rule also discouraged finding sanctions, but the new rule makes it more explicit that there should be limits to penalties (i.e., no greater than necessary to cure the prejudice).
Rule 84 and Form 18- Pleading
Rule 84 was abrogated, but does not alter existing pleading stands of Rule 8. See Notes on Rules 2015 Amendment. Rule 84 stated that the sample forms in the Appendix of Forms (Form 18 below) were sufficient under FRCP.
Form 18 showed a sample complaint for patent infringement:
Therefore, the plaintiff demands:
(a) a preliminary and final injunction against the continuing infringement;
(b) an accounting for damages; and
(c) interest and costs.
As you can see, Form 18 was pretty bare bones. Abrogating Rule 84 heightens the pleading standard, thereby disabling NPE plaintiffs from making bald assertions in their complaints for patent litigation cases. This allows defendants to understand the claims and actually know what the litigation is about.