New Path for Accelerated Discovery Requires Immediate Expert Assistance

The Eastern District of Texas is well known for its intense patent activity and already provides early disclosure of infringement and invalidity contentions to facilitate faster resolution of these cases.  The Court has now taken similar action by providing an option for accelerated damage discovery, including requiring a two week turnaround between defendant’s production of potentially infringing sales data and plaintiff’s good faith estimate of damages.  Accomplishing this will require expert assistance immediately in the process.  Even for cases that do not settle, this damage estimate will inform the Court’s discovery decisions and resource allocations.

On February 25, 2014, Chief U.S. District Judge Leonard Davis issued General Order 14-3, which provides this optional schedule in patent infringement cases called the Track B Initial Patent Case Management Order (“Track B”).  Track B generally requires early disclosure of the most critical information in assessing the plaintiff’s damages, although the estimates offered during the accelerated period are non-binding and additional discovery is available later in the process.

This article contains a more detailed discussion of the Track B discovery timeline and the need for a damages expert.

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