A Blog About Intellectual Property Litigation and the District of Delaware


JLH
The Honorable Jennifer L. Hall

Cross Briefing On Discovery Disputes Is Not an Opportunity to Pre-Brief the Other Side's Motion

Andrew E. Russell, May 20, 2024
Discovery Disputes Letter Briefs

"Guys, if we write our own opening brief on their issue, we'll get more than twice the page limit! The Court loves extra briefing, right?" ron dyar, Unsplash

I've had this come up a couple of times lately, and an opinion came out on Friday that addresses it.

Here is an example scenario: Each side has a discovery dispute. The Court sets a briefing schedule with opening, answering, and reply 3-page briefs. Can each side spend half of its opening brief pre-briefing the other side's issues? Should they?

Judge Fallon resolved this on Friday with a clear "No". You wait for the other side to file their brief, and then respond:

ORAL ORDER re 49 Joint Motion for Discovery …
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Court Denies Motion to Dismiss That Was Contingent on a Claim Construction Issue

Andrew E. Russell, May 17, 2024
MTD FRCP 12(b)(6)

Trash Can Basket
Gary Chan, Unsplash

If you file a motion to dismiss and it's contingent on resolution of a claim construction issue in your favor, you're at risk of being denied. We saw that yesterday in a case before Judge Hall, where she denied a motion to dismiss in advance of the Markman hearing:

ORAL ORDER: Having been reassigned this case, having reviewed the briefing filed in connection with Medacta's pending Motion to Dismiss Count III (regarding infringement of the '678 patent) for Failure to State a Claim (D.I. 12 ), and it appearing that the outcome of the Motion depends on the Courts claim construction of a particular term, and in light of the fact that claim construction disputes are …
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Judge Hall Cancels Markman, Defers SJ After Parties Propose 18 Terms

Andrew E. Russell, May 4, 2024

Eject Button
Brian De Groodt, Unsplash

We post often about how the Court handles Markman, and how much leeway the judges will give parties in seeking to construe terms (hint: it's usually 10 terms or less—and, these days, that's the total number, not the 10 terms per patent of old.).

This week, after parties in a case before Judge Hall sought construction of 18 terms, the Court vacated the Markman hearing and briefing schedule, and deferred all construction to the case dispositive motions stage (seemingly without additional pages):

ORAL ORDER: The parties have submitted a joint claim chart (D.I. 105 ) with 18 terms in dispute including, for example, "calculate" and "random." Defendants contend that 9 of the 18 disputed …
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Judge Hall Declines to Issue Jury Questionnaire

Andrew E. Russell, April 17, 2024
Jury Selection Trial Practice

Survey
Nguyen Dang Hoang Nhu, Unsplash

Juror questionnaires are rarely a sure thing. These are questionnaires that jury services sends to jurors called for service. The answers are then provided to the parties shortly before trial. Parties like them because they aid in jury selection, but the Court often raises concerns—although they do go out in some cases.

Judge Hall last week rejected a joint request for a jury questionnaire, noting that it would largely overlap with regular voir dire questions:

ORAL ORDER: Having reviewed the parties' joint letter regarding their request to send out a juror questionnaire (D.I. 522 ), IT IS ORDERED THAT the request is DENIED. The Court does not see a reason to burden the prospective …
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Court Rejects Fully-Redacted Filing in Case Before Judge Hall

Andrew E. Russell, April 10, 2024
Redactions

ChatGPT isn't working today, so you get a picture of a lock.
Anna Might, Unsplash

The District of Delaware generally permits parties to file things under seal without a motion to seal, and requires parties to file a redacted version within 7 days. Usually, the Court permits parties to handle redactions without judicial intervention (although not always).

As we've written about repeatedly, Judge Andrews regularly rejects redacted versions of filings that take the easy way out and simply redact entire exhibits rather than doing line-by-line redactions.

While we were out last month, the Court issued a similar order in a case before Judge Hall:

DEFICIENCY NOTICE by the Court issued re 238 Redacted Document. The redacted filing (D.I. 238) is REJECTED because parts of it are redacted in its …
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Judge Hall Rejects Request to Impose Summary Judgment Motion Ranking, Expands Page Limits

Andrew E. Russell, April 8, 2024
Summary Judgment Ranking

Continuing our eclipse theme
AI-Generated, displayed with permission

Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.

The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.

The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimes required parties to seek leave before filing summary judgment motions.

Chief Judge Connolly has instituted a "ranking" procedure in his cases to help deter meritless …

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What's New in Judge Hall's Revised Form Scheduling Order for Patent Cases?

Andrew E. Russell, Feb. 5, 2024
PGR Scheduling Order

Scheduling Order

Last month, after her elevation to the bench as a district judge, Judge Hall issued a revised form scheduling order.

I think it's worth paying attention to what changes, even if the changes may not directly apply in your case, because it shows what the judges are focused on and thinking about.

Plus, it usually doesn't hurt to comply with a judge's newest procedures even if they are not required by the (outdated) scheduling order in your case.

So, what's new?

Stating the Meaning of "Plain and Ordinary Meaning"

Judge Hall adopted a set of additional requirements for joint claim construction briefs. Like all of our current judges, she uses Judge Andrews' procedure of a joint claim construction brief. But …

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Judge Hall Holds that Magistrate Judge Hall's Order Was Not "Clearly Erroneous and Contrary to Law"

Andrew E. Russell, Jan. 26, 2024
FRCP 72 Objections to R&Rs

Order Approved
AI Generated, displayed with permission

Plaintiff in Applied Biokinetics LLC v. KT Health, LLC, C.A. No. 22-638-RGA-JLH (D. Del.) had some bad luck this month.

Late last month, Magistrate Judge Hall denied their motion to strike an expert report that they argued exceeded the bounds of the parties' contentions.

Shortly thereafter, Plaintiff objected to Magistrate Judge Hall's order, appealing to Judge Andrews to reverse the order because it is unsupported:

ABK would be unfairly prejudiced if KT were permitted to use its previously-undisclosed invalidity theories because ABK properly relied on KT’s invalidity contentions, discovery responses, and case narrowing during fact discovery. . . . The Magistrate Judge’s decision to not strike any portion of KT’s invalidity report …
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The Court Has Started Re-Assigning Cases to Incoming Judge Hall

Andrew E. Russell, Jan. 8, 2024
Nomination Congestion

District Court Seal

We mentioned back in October that Judge Hall was confirmed to the District of Delaware. Today, the Court started re-assigning cases from existing judges to Judge Hall. These arrive as a simple one-sentence docket entry:

Case Reassigned to Judge Jennifer L. Hall. Please include the initials of the Judge (JLH) after the case number on all documents filed.

The re-assignments involve cases at multiple stages, including past the close of fact discovery, and cases where Judge Hall was not previously involved as a magistrate judge.

One common question I see is "why did our case get re-assigned"? We can all speculate, but I'm not sure it's safe to read anything into a re-assignment like this beyond "our case was re-assigned …

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Keys, Phone, Wallet, Delaware Counsel

Nathan R. Hoeschen, Nov. 16, 2023
Discovery Disputes

Even occasional Delaware practitioners will be aware of the meet and confer requirement for non-dispositive motions embodied in LR 7.1.1:

. . . every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware counsel for any opposing party.

This rule gets an additional piquante twist in the context of discovery disputes, wherein several judges' procedures require …

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