Damages and willfulness are bifurcated for discovery and trial
The Dutch Branch of Streamserve Development AB v. Exstream Software, LLC and Hewlett-Packard Co., Civ. No. 08-343-SLR, August 26, 2009.
Robinson, J. The Court determines that bifurcation of damages and willfulness for both discovery and trial is appropriate over plaintiff’s challenge.
With 89 patent cases pending before this judge, the court notes that limited damages discovery may be appropriate for settlement and the issue of commercial success, but discovery disputes and Daubert motion practice relating to damages are a drain on scarce judicial resources. The juries are similarly burdened. Bifurcation of damages has the advantage of (1) allowing the parties the first opportunity to translate the final legal decision into commercial consequences, or (2) giving a subsequent damages jury a focused dispute to resolve. Without bifurcation, the time to reach trial on the merits is extended. The Court further rejects the argument that willfulness discovery should be allowed because such evidence is relevant as to whether plaintiff may be entitled to a permanent injunction. Such intrusive discovery can be pursued in a focused manner after the liability trial if the plaintiff prevails. Finally, the Court finds attorney client privilege was properly asserted and not waived after reviewing the depositions of two inventors, noting that the contested responses given provided no more information than a privilege log would give.
