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Frivolous Lawsuit Defenses

Tort reform advocates are always quick to point blame for frivolous lawsuits.  But they never address frivolous defenses — unnecessary conduct by defendants that drive up the costs of all litigation.  But one case last week is making some news and shedding light on some of these abuses.

On August 18, 2006, Judge Leonard Davis,  a federal district court judge in Tyler, issued an opinion in a patent infringement case against Microsoft.  Judge Davis’s opinion outlines many litigation abuses by Microsoft including findings that:

1.  Microsoft delayed in producing witnesses for deposition, including only allowing one witness to be deposed the Sunday before the Monday trial started.

2.  Microsoft failed to provide important documents and data to the plaintiffs as required by the rules, and even offered false testimony that some of the data did not exist.

3.  Microsoft offered many instances of false or questionable testimony.

4.  When the parties were required to designate their trial exhibits, Microsoft designated 3,449 potential exhibits in a 283 page exhibit list.  At trial, they only offered 107 of these exhibits.  The court found that Microsoft intentionally misled the plaintiff and the court by trying to hide their real trial exhibits in their overwhelming list.  The court noted that it was unfair to the plaintiff and created a huge unnecessary burden on the court and its staff.

Based on these findings of litigation misconduct, Judge Davis awarded the plaintiff $2,300,000.00 in attorneys’ fees.  In addition, Judge Davis awarded the plaintiff an additional $25,000,000.00 in “enhanced damages” based in part on this conduct and in part on the jury’s findings that Microsoft willfully violated the patents in issue.  After these awards and the actual damage awards, the total award will be over $140,000,000.00 plus interest.  A complete copy of the order is graciously hosted by the patentlyo blog.

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