The Recorder Guest Article: In Practice: Judges Want Damages Early

07/02/2013


Two Northern California judges have required patent plaintiffs to provide detailed pre-discovery damages calculations. A dramatic shift from the common practice in patent cases, this could spur early resolution.

Rule 26(a)(1) of the Federal Rules of Civil Procedure requires a party to disclose, "without awaiting a discovery request, a computation of each category of damages claimed."

In patent infringement cases, some plaintiffs initially disclose only their damages theories and state that it is premature to provide a calculation before discovery. In addition to their damages theories, other plaintiffs initially disclose the damages floor (for example, "at least $10 million in lost profits"). Some unscrupulous plaintiffs set the floor unrealistically high in an effort to pressure defendants into settling early. Few plaintiffs initially disclose detailed calculations with evidentiary support. That is, until now, perhaps.

Excerpted from the Recorder, July 2, 2013. To view full article, click here (subscription required).

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