This is the fifth 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. The second, third and fourth articles provided strategies for avoiding or controlling discovery and document production.

The focus of this series has been on how Goliath-sized defendants can turn their size from a weakness into a strength in asymmetrical litigation. This article considers such litigation from the perspective of the plaintiff and ways a defendant can manage the litigation by managing the plaintiff and discovery disputes.

While every plaintiff is different, small non-practicing entities tend to have limited resources, use contingency fee counsel, look to settle cases early and try to defer expenses as long as possible. This combination of factors can lead some plaintiffs to submit weak papers that only vaguely lay out case theories and are short on specifics. While it can be frustrating to litigate against amorphous and vague allegations, defendants should seize such opportunities to litigate both sides of the case by framing the issues in an advantageous way and educating the court.

For example, in the patent infringement context, if a plaintiff has failed to articulate a cognizable infringement theory in its complaint and infringement contentions, the defendant should articulate one for them—that plays into its noninfringement or invalidity case. Similarly, if a plaintiff’s claim construction theories are muddled, a defendant can gain a tactical edge by characterizing their respective positions in a helpful way.

Defendants, while no doubt looking to avoid the expense of unnecessary litigation efforts, should take full advantage of any failure on the part of a plaintiff to fully litigate a case. Examples of this approach include:

  • Pressing for appropriate discovery responses
  • Moving to preclude insufficiently disclosed claims and theories
  • Forcing experts to disclose their opinions fully
  • Moving to strike inadequate expert reports
  • Filing Daubert motions to preclude unreliable expert testimony

Equally important is to manage discovery disputes. A common tactic employed by smaller-sized plaintiffs is to try and raise discovery violations to put pressure on defendants, particularly when plaintiffs’ substantive cases are weak. Indeed, in the patent litigation context, judges in one of the most popular forums have expressly stated that “there are two ways to lose a case in the Eastern District of Texas: on the merits or by discovery abuse.” Let’s take an example to illustrate how a trumped up discovery dispute intended to tar and distract a defendant can be flipped on the plaintiff.

A Goliath-sized defendant produced more than 2 million pages of documents after sending several letters to its David-sized adversary in an unsuccessful attempt to try and confirm the scope of documents that were being requested (as suggested in our previous article). Nearly a year after the defendant completed its production and near the end of fact discovery, with expert discovery and dispositive motion practice on the horizon and the case faring poorly for the smaller-sized plaintiff, the plaintiff complained that defendant’s production constituted a “document dump.” The plaintiff based this charge on its uncovering a handful of emails, among the 100,000 or so produced, that were irrelevant to any issue in the case. Plaintiff admitted it had only looked at a small portion of the production, yet it demanded that defendant “redo” its entire production, including the email and nonemail portions. What should a defendant do in this situation? Fight the frivolous demand? Capitulate and pay to revise the whole production? We suggest an in-between approach—give in to superficially reasonable requests to remove them as distractions, but turn the tables on the plaintiff when they push too far.

The Goliath-sized defendant, desiring to take the email production issue off the table and focus on the merits of the case, offered to re-review the email portion of the production (but not the rest of the production which had been manually collected). Plaintiff, as expected, brought the alleged discovery violation to the court’s attention anyway, asking the court to sanction the defendant and order it to redo its entire production. After having unilaterally re-reviewed the email portion of the defendant’s production and reproduced a subset of the documents (without plaintiff’s agreement that this would resolve the dispute), defendant opposed the motion.

In its opposition, defendant explained that

  1. Its original production was narrowly tailored to the issues in the action, as shown by its series of letters to plaintiff’s counsel
  2. When the plaintiff uncovered a handful of irrelevant documents, defendant re-reviewed its email production and produced a narrower set of documents.

This all demonstrated defendant’s good faith efforts and plaintiff’s bad faith charges of a discovery violation. The defendant’s efforts paid off.

The court ruled that, because it could not decide which side was correct on the document dump charge, it would appoint a special master to review the production to determine whether defendant’s production comprised a document dump. The court added a significant kicker to its order—the loser would pay the winner’s legal fees. In other words, if the special master found that defendant’s production did not constitute a document dump, then plaintiff would be forced to pay for both the special master and defendant’s legal fees in connection with plaintiff’s motion alleging a document dump. This ruling fundamentally changed the landscape of the action by turning the tables on the plaintiff. For the first time, the David-sized plaintiff was now faced with the prospect of having real skin in the game by having to pay the Goliath-sized defendant’s legal bills.

The lesson here is that defensive discovery fights plays into smaller entities’ game plan to try and distract attention away from the substantive aspects of the matter. Positioning the Goliath-sized defendant to try to flip these discovery fights to the larger entity’s advantage, by putting risk on the plaintiff, can yield enormous value and lead to a highly favorable outcome as outlined in the case history above. In sum, by managing the plaintiff and discovery disputes, a Goliath-sized defendant can frame litigation in a favorable light and focus its resources on substantive resolution.