The U.S. District Court for the Eastern District of Texas (EDTX) has issued a General Order for an alternative case management schedule that expedites disclosures in patent cases. The "Track B Initial Case Management Order" is a fast track with focused, substantive disclosures before the Initial Case Management Conference. The information exchange allows the parties-and the court-to make an early case evaluation before the litigation is set on a standard schedule.
Before the Initial Case Management Conference, the EDTX "Track B" schedule provides expedited disclosures for infringement and invalidity contentions, early disclosure of licensing or settlement agreements of the asserted patents, summary sales information of the accused products, and damages estimates.
By the time all defendants have answered or otherwise responded to the Complaint, parties may elect, or the Court may order, the alternative schedule. The "Track B" deadlines require a swift exchange of:
- Infringement Contentions and Licensing Disclosures - 14 days after all defendants respond to the Complaint;
- Initial Disclosures and Summary Sales Information - 30 days after Infringement Contentions are served;
- Good Faith Damages Estimate - 14 days after Initial Disclosures; and
- Invalidity Contentions - 14 days after the Damages Estimate
- Discovery is also allowed, but limited to 5 interrogatories, 5 requests for production, and 5 requests for admission.
After the disclosures, the case is set for an Initial Case Management Conference. Beforehand, the parties are required to discuss and file a joint discovery plan that discloses related cases, addresses consolidation, sets discovery limits, evaluation of document disclosures, considers use of the EDTX Model Orders, assessment of expedited claim construction and trial scheduling, mediation, and identification of early dispositive issues and potential discovery disputes. The case will be individually reviewed, as "the Court is interested in setting a schedule and discovery limitations that are fair and adequate, but that also bear an appropriate relationship to the likely value of the case." The "Track B" Order also requires good faith compliance, inviting sanctions if disclosures lacked good faith, were unreasonably sparse, or intentionally misleading.
The “Track B” Order is a significant evolution in case management and a thoughtful response to the growing cost of litigation and Congress's pending patent legislation. For example, the "Track B" Order departs from the traditional EDTX mandatory document disclosures, giving parties the option to control and focus discovery. The Order also requires an early exchange of licensing, sales, and the methods used in calculating estimated damages. These early disclosures allow the Court and the parties to better value cases, implement effective case management, and potentially prevent runaway litigation costs. With the changing landscape of patent litigation and the increased need for cost-effective case management, the "Track B Initial Patent Case Management Order" is an innovative approach that provides an early evaluation option for parties.