Limited Pre-trial Discovery in Europe: Use Strategic Patent Prosecution to Reduce the Impact

Broad Discovery in the U.S.

Pre-trial discovery in the United States is very broad. The general standard for obtaining discovery is set out in Rule 26 of the Federal Rules of Civil Procedure: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ' including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Under Rule 26, each party also has an obligation to turn over contact information of individuals who have discoverable information, all relevant documents for claims or defenses, and a preliminary calculation of damages. These rules give the parties to an infringement suit the right to demand documents from each other, demand answers to written questions, and require them to provide witnesses to give sworn testimony. The rules further grant an attorney the power to issue a subpoena to compel documents and witnesses from a party not involved in the litigation. This discovery is conducted by the parties' attorneys, with the court being involved only to resolve the (frequent) disputes. Although there have been attempts to rein in the worst discovery excesses, the parties' ability to collect evidence remains very broad.