Wednesday, February 20, 2013

Some Thoughts On Pursuing Expedited Discovery

Most non-compete (and some trade secrets) cases are effectively decided at the preliminary injunction stages. For counsel, this means that a significant part of the lawsuit must be tried quickly and with great efficiency.

Courts are used to parties making requests for "expedited" discovery in advance of the normal timeframes during which discovery usually is permitted. Discovery is necessary, because in competition cases, it is very hard for a plaintiff to prove a case without seeing what the defense has. In federal court, the standard is flexible - a party must show "good cause" to demonstrate the need for expedited discovery.

My experience has been that parties don't think through expedited discovery requests carefully enough, and as a result they can imperil their shot to get the most relevant facts introduced for the court on a preliminary injunction motion. At least in federal court, a substantial number of injunctions are decided on the paper and not on live witness testimony.

Based on my observations, here are some important steps for plaintiffs to take when seeking expedited discovery:

(1) File the motion at the same time as (or after) the motion for preliminary injunction. If a plaintiff has filed a motion for preliminary injunction and provided some evidentiary materials for the court to assess, a court is much more likely to understand the need to "complete the factual picture." Seeking expedited discovery without a preliminary injunction motion may lead the court to conclude there is no urgency to the case and no reason to speed up the discovery process.

(2) Narrowly tailor the requests. This is what dooms most expedited discovery motions. A couple of points here. First, don't include standard, form requests. Specific discovery requests should be customized to flesh out the facts laid out in the allegations that are most critical to the injunction hearing. Second, don't overshoot with requesting an inspection of personal devices. If the plaintiff can make a showing a particular device was used to download confidential information, then certainly the plaintiff may seek discovery on this device. But avoid a scattershot approach seeking all devices that the defendants may have used. This likely will be seen as too broad. Third, always attach draft discovery for the court so that it can assess the scope of the requests.

(3) Explain the need for discovery. This may seem obvious, but I have encountered too many motions that assume a court will grant expedited discovery without laying out the need for it. Competition disputes are characterized by each party's attempt to keep certain information from the other. Courts need to understand both what it is the plaintiff knows and what it can't know. If a plaintiff has been able to uncover some preliminary facts suggesting, for instance, a breach of a non-compete, the court should be told why it can't obtain other core facts without the use of court process. I would suggest, though, a brief of no more than 3 to 4 pages. Courts have enough to read, and the filing should get right to the point.

(4) Propose a protective order. The plaintiff should also consider preparing a form protective order to submit to the court along with an expedited discovery motion. This order will govern the exchange of discovery material. Since discovery likely will seek non-public, business information, it is easy for the defense to stall on discovery until such time as an order is entered. It is best to get out in front of this by providing a draft order that can be negotiated and entered quickly. The plaintiff may even consider requesting in a motion for entry of a protective order that the court require the parties to meet and confer over its terms within a certain number of days. Drafting a protective order right away is particularly important if the plaintiff intends to subpoena third-parties right away.

(5) Consider laying out a proposed schedule. Courts have to be convinced expedited discovery is appropriate. A plaintiff may increase its chances of obtaining expedited discovery by laying out for the court a schedule that is fair and mutual to both sides. A plaintiff should consider proposing limits on the number of written discovery requests, the number of party and non-party depositions, and the length of depositions. By doing this, the court will be assured that the plaintiff is not engaging in a broad, expensive fishing expedition.

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