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United States District Court for the District of Delaware
November 19, 2020, Decided; November 19, 2020, Filed
C.A. No. 14-1430-LPS
Pending before the Court is Defendants' (collectively, "Samsung's") request to compel certain litigation funding-related discovery from Plaintiff ("Elm"). (See D.I. 341, 344, 348, 349, 355, 367, 371.) During a discovery dispute teleconference, the Court ordered Elm to produce for in camera review a selection of 50 disputed documents from the following four categories: (1) agreements with third parties that provided or considered providing litigation funding (Category 1); (2) communications with third parties that did not provide litigation funding (Category 2); (3) communications with funders that occurred prior to this litigation (Category 3); and (4) communications with funders that occurred after this litigation began (Category 4). Samsung contends that the disputed discovery is relevant to damages, "key" substantive patent issues, standing, "trial themes," and bias. Samsung further argues that the requested discovery is not privileged or protected by the work product doctrine. Elm responds that the disputed documents are irrelevant and protected [*3] by the work product doctrine.
Having now reviewed in camera the documents submitted by Elm, and having considered all of the parties' filings, IT IS HEREBY ORDERED that Samsung's request to compel discovery is DENIED.
1. "Discoverability of litigation funding materials under Federal Rule of Civil Procedure 26 is a contested issue on which there is no binding precedent in the Third Circuit." United Access Techs., LLC v. AT&T Corp., No. CV 11-338-LPS, 2020 U.S. Dist. LEXIS 103532, 2020 WL 3128269, at *1 (D. Del. June 12, 2020). Judges in this district have found it "prudent" to review in camera disputed litigation funding-related documents. Id. That is the approach the Court has taken here.
2. I conclude that the documents in Category 1 are not relevant. Although there is a split of authority, I agree with the courts that have concluded that litigation funding agreements themselves are generally not relevant. I have also reviewed the submitted documents at issue here, and I agree with Elm that they are not relevant to any of the issues proffered by Samsung.
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2020 U.S. Dist. LEXIS 216796 *
ELM 3DS INNOVATIONS LLC, a Delaware Limited Liability Company, Plaintiff, v. SAMSUNG ELECTRONICS CO., LTD., a Korean Business Entity, SAMSUNG SEMICONDUCTOR, INC., a California Corporation, SAMSUNG ELECTRONICS AMERICA, INC., a New York Corporation, SAMSUNG AUSTIN SEMICONDUCTOR, LLC, a Delaware Limited Liability Company, Defendants.
Prior History: Elm 3DS Innovations, LLC v. Samsung Elecs. Co., 2015 U.S. Dist. LEXIS 130699, 2015 WL 5725768 (D. Del., Sept. 29, 2015)
documents, work product doctrine, in camera, communications, discovery, disputed, funding, discovery dispute, third party, funding-related, funders