6.6.5 Discovery and gathering of information
At or before the case management hearing, it is usual for parties to admit and deny the respective documents filed by the other party and to also seek discovery, inspection or the production of documents from the other party.169 Upon an appropriate application by one party, the court may direct the other party to respond to written interrogatories on affidavit,170 permit the inspection of documents relied upon or referred by the other party,171 allow discovery of relevant documents on affidavit,172 or direct the production of documents.173
Courts are always empowered to dismiss the suit or defense for want of prosecution if a party does not comply with an order to answer interrogatories or the order for discovery, inspection or the production of documents.174 For instance, in SEP cases, the defendants or the plaintiff would be made to share the claim-mapping charts as part of the exchange of documents to prove that the patents map the standards for which they are sought to be enforced.
Often, discovery and inspection procedures are used to seek irrelevant information and protract litigation. For instance, defendants may seek entire file wrappers from all jurisdictions just as a matter of course. However, courts do not permit such a roving inquiry or fishing expedition, and the party concerned is entitled to move the court to curtail the kind of information or type of documents being sought. The other side of this is “data-swamping” or “data-flooding,” whereby a party against whom disclosure is ordered inundates the other party with all manner of documentation in an attempt to bury the crucial material in a mountain of irrelevance. The Code of Civil Procedure enables parties to seek and defend against any discovery tool, with the courts being the final arbiter if disputes arise in this context. Again, this process demands judicial time (and enough human resources on the bench) and well-honed forensic skills on all sides.
Courts also retain wide discretion in directing the production of documents under certain conditions. To enable discovery and inspection of license agreements, manufacturing processes followed and so on – which may be confidential – courts usually constitute confidentiality clubs to maintain the confidentiality of the information disclosed.175 There has been recent debate as to whether litigants can be part of these confidentiality clubs.176 However, as far as the constitution of the clubs is concerned, there appears to be no dispute; the confidentiality club, once constituted, considerably streamlines the process of discovery and inspection of documents.
Recently, the High Court of Delhi Rules Governing Patent Suits, 2022 have been notified. These rules provide for a minimum mandatory content for pleadings in patent suits,177 a minimum set of mandatory documents to be filed by the parties,178 and specific tweaks in patent suit procedures. For instance, in addition to regular pleadings, the rules provide that parties be allowed to file claim construction, invalidity, infringement briefs and technical primers based on which the court is to frame issues in the first case management hearing.179 A second case management hearing is provided for streamlining the recording of evidence, including the protocol for a hot-tubbing mechanism.180 A reserve third management hearing is provided to address any pending pre-trial concerns.181 Importantly, the rules contemplate the creation of a panel of scientific experts to assist the court.182 While setting the calendar and protocols for a final hearing, the court may also direct that a technical expert of each party may also be present to assist the court.183