Waco Discovery Practices

With the exception of discovery necessary for claim construction, the default patent scheduling order in Waco stays all other discovery until after the Markman hearing.  This seems to offer protection against costly discovery on the front-end, until a crucial and determinative point is reached in the case: claim construction. 

However, for those parties worried that this process could delay proceedings, pre-Markman discovery is permitted by agreement of the parties or by request, when the circumstances demonstrate the necessity.  There are also other safeguards in place to streamline discovery post-Markman to avoid any delays.  Importantly, Judge Albright has granted pre-Markman motions for expedited discovery for limited purposes (i.e. jurisdictional discovery) or when good cause has been shown.

Prior to filing a motion to compel on a discovery dispute, lead counsel must meet and confer, and the parties must reach out to the Court to arrange a telephonic conference regarding the dispute.  Similar to the “hotline” available in the Eastern District, this practice hopes to curb the unnecessary time and expense of serial motions to compel and forces the parties to try to solve disputes themselves by only bringing the truly deserving disputes to the Court.  No one wants to have a telephone call with the Judge to explain that they were too stubborn to play by the rules.

So far, this practice seems to be effective.  With just over 300 patent cases filed since Judge Albright took the bench in September 2018, there have been about 10 motions to compel discovery. Based on experience, this is probably not due to the inherently agreeable nature of patent litigators.