The District of Delaware was recently asked to decide a discovery dispute over third party documents related to litigation pending in California and Texas. Software Rights Archive, LLC v. Google Inc., Yahoo! Inc., IAC Seach & Media, Inc., AOL LLC and Lycos, Inc., Misc. No. 09-017-JJF, Opinion (D. Del. May 21, 2009). Specifically, the movants (Google Inc., Yahoo! Inc., IAC Seach & Media, Inc., AOL LLC and Lycos, Inc.) were seeking documents from the third parties (Delaware entities) related to: (1) jurisdiction; (2) “respondent’s efforts, if any, to ‘monetize’ the patents-in-suit”; and (3) the patents and their inventors. Id. at 2.
Judge Farnan held that although the documents may be available from the opposing party, there is no rule that prohibits a party from also requesting those same documents from a third party or requiring them to request them from a party first. Id. at 4. Moreover, to ensure the “completeness” of discovery, “where a party requests documents from a non-party that are likely to be in the possession of an opposing party, production of documents is appropriate where those documents constitute a ‘non-well-defined set’ ‘whose completeness is not readily verifiable.'” Id. at 6. (internal citations omitted). Therefore, the Court ordered the third parties to produce the documents despite the fact that the opposing party might also be in possession of the documents.