Plaintiff Ethicon filed a motion for limited expedited discovery, stating that it “intends to file a preliminary injunction motion against [defendant] Intuitive’s . . . products, but it first needs a limited set of materials to confirm infringement” by products which are not yet sold publicly, but which Ethicon believed were about to be commercially launched. Ethicon LLC, et al. v. Intuitive Surgical, Inc., et al., C.A. No. 17-871-LPS-CJB, Memo. Or. at 1-2 (D. Del. Aug. 16, 2017). Magistrate Judge Christopher Burke denied the motion, noting that no answer or Rule 12 motion had been filed, no motion for preliminary injunction had been filed, and “the majority of courts have held [that failure to file a motion for preliminary injunction] weigh[s] against allowing [a] plaintiff’s motion for expedited discovery.” Id. at 3. Moreover, although the requested discovery may be helpful in proving likelihood of success and causal nexus when Ethicon does file a motion for preliminary injunction, “normally, a party that accuses another of patent infringement is first required to articulate a basis for such allegations in a pleading–without getting the prior opportunity to force access to its opponent’s confidential documents, all in order to ‘confirm’ whether its assertions are well-founded,” which would cause prejudice to defendant Intuitive. Id. at 5-6.
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