have previously pointed out that Big took an aggressive position with
respect to resolution of the case. In this regard, Big wants a hearing
on its application for preliminary injunction at the earliest possible
time and, in order to be prepared for that hearing, it wants the judge
to order expedited discovery requiring Small to comply with Big's request
for production of documents and things, interrogatories and deposition
notices at the very earliest possible time.
Where the party seeking accelerated discovery is in fact sustaining immediate and irreparable damage, setting an expedited discovery schedule is unquestionably justified. The urgency of immediate relief, however, must be balanced against the hardships associated with accelerated discovery and whether or not accelerated discovery permits the opposing party to conduct its own discovery. Moreover, since haste can indeed make waste, the court must balance the claimed need for accelerated discovery with whether or not that immediate discovery jeopardizes an ultimate fair resolution of the matter in question. Since these matters are up to the discretion of the trial judge, the perception of the merits of the positions of the two parties by the judge is particularly important. In this regard, an aggressive posture by the party seeking immediate disclosure may well carry the day, especially since there has (by definition) been little time for any weaknesses in the case of the party employing the aggressive posture to appear. As we have previously noted, Big took such an aggressive posture in its counterclaim.
Big's motion to accelerate and its various discovery requests were all dated July 29, 2007, and Big sought an order requiring responses to the interrogatories and requests for production of documents and things on Aug. 9. Then Big wanted depositions of Small and Cpaatty on Aug. 11 and 12, 2007. Was there any possibility the judge would grant such a schedule? The simple answer is that anything can happen in a court, but from Big's standpoint, just a request for such a schedule would put further pressure on Cpaatty (who was out of the country) and Small to capitulate.
The fictional judge in our fictional case, however, did not grant such a draconian schedule and, in the end, allowed both of the parties adequate time to complete their discovery. The judge presumably concluded that the claim of urgency with respect to the discovery did not make sense in light of the fact that the parties had apparently coexisted, using the same mark, for three years.
It serves no purpose to dwell on the exact schedule, or to dwell on the further maneuverings of the parties with respect to this issue. It is enough to repeat, as previously stated, that the judge allowed both of the parties adequate time to complete their discovery. If you want to take a look at the various discovery requests, take a side trip and do so, then come back here and look at Small's response to Big's motion for a preliminary injunction.
(c) Copyright 2010-2014 Milliken PLC