discoveryTwo separate posts this week referenced or discussed the White House’s ideas on how to reduce predatory patent litigation and reduce incentives in the patent system which inspire such suits. Coverage of the President’s involvement noted that numerous bills have been introduced in Congress related to patent litigation.

One proposal comes from Senator John Cornyn, the “Patent Abuse Reduction Act.” A provision of the bill, § 300, addresses the process of requesting documents related to the patent at issue, known in legal terminology as “discovery.” Regarding the costs for “core documentary evidence,” the provision retains the approach taken under the Federal Rules of Civil Procedure for all civil litigation — each side bears their own costs for producing such documents. But for “additional discovery” (which the bill defines as “evidence other than core documentary evidence”), the requesting party will have to pay for production of those documents.

The approach taken by Senator Cornyn’s bill — targeting one particularly potent tool that patent plaintiffs use to encourage defendants to settle — is one that certainly deserves consideration for all civil litigation. A Washington Legal Foundation Legal Backgrounder released on June 7 makes a compelling case for reversing the Federal Rules’ default setting that those producing discovery pay the costs in all instances.

Hollingsworth LLP partner Rebecca Womeldorf authored the WLF publication A Requester-Pay Default: Common-Sense Discovery Reform Can Reduce Undesirable Litigation Incentives

In the Legal Backgrounder, she writes,

Discovery — once exclusively a means of obtaining information relevant to the legitimate end of fact finding — now indisputably provides the requester with court-assisted settlement leverage, irrespective of the merits.

The potency of discovery as a leverage weapon has intensified in the past two decades with the explosion of electronic data. The nature of such data, which can be easily and unintentionally deleted, has also given rise to so-called spoliation claims, where one litigant accuses the other of document destruction and urges courts to sanction the alleged offender.

For these and other reasons, the federal judiciary has initiated a process to reform Federal Rules that govern discovery. On June 3, a Standing Committee of the Judicial Conference of the United States’ Advisory Committee on the Rules of Civil Procedure approved a proposal for public comment on discovery rules. But as Ms. Womeldorf notes in her paper, the idea of shifting the cost burden is not part of that proposal and the judiciary “cannot achieve . . . its objective absent a paradigm shift that requires every litigant to consider the potential benefits of discovery in light of its cost.”