Revised Venue and Jurisdictional Discovery Limits

Yesterday evening Judge Albright released a new Standing Order Regarding Venue and Jurisdictional Discovery Limits for Patent Cases. This Order significantly changes Judge Albright’s default limits in his Order Governing Proceedings (OGP). Here are the changes:

  1. There are no longer any discovery limits related to venue and jurisdiction in patent cases. Yes, you read that right. Parties are only limited by Fed. R. Civ. P. 26(b)(1). 
  2. If a party disputes the relevance or proportionality to the needs of the case, as always, parties are directed to contact the Court for a telephonic hearing. 
  3. Jurisdictional discovery is to be completed no later than six months after the filing of the initial motion. 
  4. Finally, the deadline to file Plaintiff’s response is two weeks after the completion of venue or jurisdictional discovery. 

Why did Judge Albright remove limits on venue discovery? I think Judge Albright’s motivation is reflected in Fintiv, Inc. v. Apple, No. 6:18-cv-00372-ADA, 2019 WL 4743678, at *4 (W.D. Tex. Sept. 13, 2019), where he stated: “a mechanical approach [to venue disputes] ignores the information asymmetry between the parties at this stage of the case, which unfairly handicaps the patentee/non-movant as it can only find potential witnesses using public information whereas the alleged infringer/movant has both public and confidential information.” And in terms of “Why now?” to make this change to its procedures, the close proximity in time to last week’s In re Apple mandamus order is likely not coincidental.

So what we said a few months ago about the Court’s “targeted discovery [approach] … with regard to motions to transfer venue or motions to dismiss based on lack of jurisdiction”—while true then—has been replaced by a new reality.