After a ruling for the defendant, the plaintiff refiled in federal court. Again no discovery was taken, no motion practice occurred, no experts were identified. Trial was set, and all the deadlines had run. The situation would be almost comedic if the stakes were not so high. In other cases, hundreds of thousands of dollars are wasted in discovery where no one really knows or has planned for what they want to find or what they want to do once they've found it.
Discovery becomes the strategy in an attempt to buffalo the other side.
But the discovery obtained does little to advance the endgame. In recent U.S. Roundtable Program discussions, sponsored by the International Trademark Association, traditional IP lawyers offered two reasons for why cases are not settling quickly, resulting in expensive IP litigation. First, the trademark bar is not small and collegial anymore, and the newcomers are too quick to fire off overly aggressive cease and desist letters containing personal attacks. Second, insurer-appointed defense counsel are not experienced in IP law and practice, and improperly try to litigate IP cases rather than quickly surrendering them. The latter concern is, frankly, the fault of the traditional IP practitioner who filed the lawsuit and is the consequence of poor planning.