Sec. 6. Procedures and practices to implement recommendations of the Judicial Conference
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The Judicial Conference of the United States, using existing resources, should develop rules and procedures to implement the discovery proposals described in paragraph
(2)to address concerns regarding the asymmetries in discovery burdens and costs that may arise in a civil action arising under any Act of Congress relating to patents. The rules and procedures to be developed under paragraph
(1)should address each of the following: To what extent each party to the action is entitled to receive core documentary evidence and should be responsible for the costs of producing core documentary evidence within the possession or control of each such party, and to what extent each party to the action may seek noncore documentary discovery as otherwise provided in the Federal Rules of Civil Procedure. If the parties request discovery of electronic communication, how such discovery should be phased to occur relative to the exchange of initial disclosures and core documentary evidence, and appropriate limitations to apply to such discovery. The manner and extent to which the following should apply: Each party to the action may seek any additional document discovery beyond core documentary evidence as permitted under the Federal Rules of Civil Procedure, if such party bears the reasonable costs, including reasonable attorney’s fees, of the additional document discovery. Unless the parties mutually agree otherwise, no party may be permitted additional document discovery unless such a party posts a bond, or provides other security, in an amount sufficient to cover the expected costs of such additional document discovery, or makes a showing to the court that such party has the financial capacity to pay the costs of such additional document discovery. A court, upon motion and for good cause shown, may modify the requirements of subparagraphs
(A)and
(B)and any definition under paragraph (3). Not later than 30 days after the pretrial conference under rule 16 of the Federal Rules of Civil Procedure, the parties shall jointly submit any proposed modifications of the requirements of subparagraphs
(A)and
(B)and any definition under paragraph (3), unless the parties do not agree, in which case each party shall submit any proposed modification of such party and a summary of the disagreement over the modification. A court, upon motion and for good cause shown, may determine that computer code should be included in the discovery of core documentary evidence. The discovery of computer code shall occur after the parties have exchanged initial disclosures and other core documentary evidence. The manner and extent to which the parties shall discuss and address in the written report filed pursuant to rule 26(f) of the Federal Rules of Civil Procedure the views and proposals of each party on the following: When the discovery of core documentary evidence should be completed. Whether additional document discovery will be sought under subparagraph (C). Any issues about infringement, invalidity, or damages that, if resolved before the additional discovery described in subparagraph
(C)commences, might simplify or streamline the case. In developing rules or procedures under this section, the Judicial Conference should consider which kinds of evidence constitute core documentary evidence . In this subsection the term electronic communication means any form of electronic communication, including email, text message, or instant message. The Judicial Conference of the United States, using existing resources, should develop case management procedures to be implemented by the United States district courts and the United States Court of Federal Claims for any civil action arising under any Act of Congress relating to patents, including initial disclosure and early case management conference practices that— will identify any potential dispositive issues of the case; and focus on early summary judgment motions when resolution of issues may lead to expedited disposition of the case.