Delaware Judge Orders Disclosure of Pre-Suit Communications on Plaintiff’s Privilege Log
- December 4, 2020
Category: Patent Litigation FeatureMarket Sector: E-Commerce and Software
A recent privilege log ruling from Delaware District Judge Richard G. Andrews provides a rare, public glimpse into the pre-suit phase of an NPE’s monetization strategy. That December 3 order details how a now-prolific litigant spent over two years—starting at least in “early 2013, and probably by some time in 2011 or 2012”—gearing up for a litigation campaign launched in 2015. The plaintiff, per the court, had “multiple outside lawyers, most of whose roles are not entirely clear” and as having “various non-lawyer employees, directors, and consultants, who seemed to spend quite a bit of time drafting claim charts relating to potential infringement by dozens (if not hundreds) of companies”. Noting that the connection of the latter group “to the work of any of the lawyers is, for the most part, obscure”, Judge Andrews proceeded to require the disclosure of 11 of 13 disputed documents in a memorandum order that provides some guidance as to how the documents generated by such pre-suit activity might be handled, later, in the discovery phase of later litigation.