In a speech last week to Eastern District of Texas Judicial Conference, Chief Judge Rader introduced a Model E-Discovery Order and urged judges and attorneys to develop assessments of damages early in the litigation process. He states:
“I recommend that trial judges use their authority, including DAUBERT inquiries, to ascertain early in the case the approximate dollar value of the case… The parties also benefit from early damages discussions and disclosures because it can provide a realistic evaluation of both Defendant’s exposure and Plaintiff’s damages calculation and further promote early and effective mediation. This inquiry can occur at the onset of the case during case management conferences or even a little later in connection with Markman hearings.
With an understanding of the case’s true worth, the trial judge would then be poised to identify cases that would benefit from tailoring the standard procedures to fit the case and its significance. In colloquial terms, the court may adjust timing and procedures of the case to make sure a billion-dollar case gets a “billion-dollar’s worth” of process—adequate time and witnesses and confidential information protections and more—and a thousand-dollar case gets . . . well, less.”
Source: “The State of Patent Litigation,” Chief Judge Randall R. Rader, United States Court of Appeals for the Federal Circuit, E.D. Texas Judicial Conference, 9/27/2011.