Yesterday, the Court posted its 2026 Annual Report. There are a few easy highlights here.
Civil case filings in 2025 went up by 10%:
That increase seems to stem from more IP cases and more prisoner petitions:
Delaware continues to have one of the highest counts of patent cases per active judgeship:
District Court
In the above chart, Delaware almost takes the lead, but EDTX has more overall patent cases. Of course, in recent years, NPE cases have trended towards TX—if there were a chart of competitor cases, which are much more work, I expect Delaware would easily take the lead.
An Exhibit to a motion dismiss lives a sad life. It is attached without fanfare, so as not to draw attention. It is mentioned, if at all, with a footnote saying that we can all see exactly what it is, and all know what its about just by looking at it. It is a book that can be judged by its cover, and the less said about it, the better.
AI-Generated, displayed with permission
That said, although attaching an exhibit that is. allegedly "integral to the claim" and/or subject to judicial notice is commonplace, decisions actually deciding the issue are rare. This can be seen in today's Last Month's decision in Bloomsbox.com, LLC v. Userway, Inc., C.A. No. 24-844-RGA (D. Del. Feb. 13, 2025).
The case there involved various contract, fraud, and false advertising claims based on claims on the defendant's website. Defendant's motion to dismiss attached 5 exhibits:
A Copy of the terms of use from their website
An Answer the plaintiff had filed in a related suit
2 Screenshots from the offending website dates the day the motion to dismiss was filed
A document that purported to be a "legal action guide" referenced in the complaint
In opposing the complaint, the plaintiff conceded that the terms of use and the answer from the other matter were authentic. As to the remainder, plaintiff simply said they "cannot accept the authenticity of the remaining attachments at this time."
Judge Fallon, in a fun twist, actually on whether the disputed exhibits could be considered at this stage:
The court declines to consider the remaining exhibits because Plaintiff challenges their authenticity. . . The complaint contains quotations and captures of Defendant's website from various dates predating the initiation of this lawsuit on July 19, 2024. Defendant offers no legal basis to support the court's consideration of more recent website content that was not included in the complaint.
Exhibit D purports to be a Legal Action Guide that Defendant prepared for Plaintiff in response to litigation brought against Plaintiff. The complaint alleges that Defendant opened a "ticket" and sent Plaintiff a Legal Action Guide after Plaintiff purchased an annual subscription to obtain legal support on December 11, 2023. The complaint further alleges that Defendant informed Plaintiff it had "closed" the case on December 15, 2023. It is not clear from these averments that the December 22, 2023 Legal Action Guide attached as Exhibit D to the motion to dismiss is the same version described in the complaint. Thus, the court declines to consider the contested document at the pleading stage
Id.at 5-6.
It's not clear from the opinion how much the contested date issues affected the analysis. It appears from a footnote that neither party turned up any terribly on point cases about the standard for determining whether an exhibit is indisputably authentic:
Defendant suggests that Plaintiff is required
to offer a "particularized reason to suspect the materials are faulty or altered," and the court may consider website screenshots "if they are integral to the claims and their authenticity is not genuinely disputed." Defendant cites US. Express Lines, Ltd v. Higgins in support of this assertion, but this case reiterates the general proposition that the court may consider "a document integral to or explicitly relied upon in the complaint" without converting the motion to dismiss into a motion for summary judgment. Higgins offers no commentary on the authenticity requirements for documents outside the pleadings at this stage of the case. The District of New Jersey's rejection of an authenticity challenge in Hughes v. Kolaras is inapposite. There, the plaintiff challenged the authenticity of a contract even though her signature appeared on it. Id. Defendant cites no authority supporting its position that the authenticity of a website screen grab is comparable to a signed contract.
Yesterday, Judge Fallon addressed a motion to compel in Airbus SAS v. Anaconda, Inc., C.A. No. 25-178-CFC-SRF (D. Del.). The moving party sought to compel production of various technical information in a copyright and breach of contract case.
The Court first noted that the moving party had not adequately limited the request or sufficiently tied it to their claims.
Beyond that, the Court described how, if the party had really wanted broad technical discovery, it wouldn't have cancelled a noticed 30(b)(6) deposition on related topics after the deponent had already traveled to the US from Germany:
[W]hen Anaconda [the moving party] had an opportunity to depose a 30(b)(6) witness on the GISEH …
The exact same rule applies to meetings, e-mails, the playback of recorded deposition testimony . . . and blog posts (ahem).Dylan Gillis, Unsplash
I'm a big fan of page limits for briefs. Most times, when attorneys are forced to cut briefs back, the resulting brief is stronger overall than the original (assuming counsel doesn't do something crazy like dropping the whole facts section). The short, simple, easy-to-read arguments tend to be much more effective than the long and complex but easy-to-write arguments.
But not everybody agrees. Today we got an opinion from Chief Judge Connolly in Shelton v. Patton, C.A. No. 24-1338-CFC (D. Del.) where, in response to a motion to dismiss, counsel had …
As inter partes reviews become harder to get, parties have been increasingly turning to ex parte review (EPR) proceedings. I've noticed an increase in requests for stays pending EPRs—at least one of which was recently granted, for a case in its early stages.
Yesterday, visiting Judge Wolson of EDPA issued an order addressing a later-stage motion to stay, which the Court denied.
Along the way, Judge Wolson set forth his views that, unlike IPRs, EPRs rarely warrant staying the action.
He first noted that these proceedings are uncertain and lengthy:
Parties routinely ask me to stay cases pending an EPR. I write here to explain why, except in extraordinary cases, I do not think …
spent way too long just now trying to find the origin of the phrase "piercing the veil." It's so ubiquitous in the legal parlance that I just always assumed it was from Paradise Lost or something.
Apparently, there's no clear early usage—the nearest available is a reference in Plutarch to "lifting the veil." This phrasing honestly makes a lot more sense from a writing standpoint, because that it is what people do with veils—it's honestly pretty unhinged behavior to pierce one.
Lift, don't pierce. That'll just ruin yer veil.Wesley Sanchez, Unsplash
Instead, it seems to have arisen in the exact same corporate law context that I use it in. Apparently, most normals don't use it at all. I just asked the guy at the checkout at CVS and he had no idea. Or at least, that's how I interpreted the exaggerated eyeroll and sigh.
This brings me to Judge Burke's opinion in Duvall Espresso IP Enforcement, LLC v. Meticulous Home, Inc., C.A. No. 24-22-CJB (D. Del. Mar. 2, 2026). The plaintiff there filed infringement claims against a corporate entity ("Meticulous Home") and its sole owner/founder/CEO Mr. Pendas.
Mr. Pendas moved to dismiss, arguing that the complaint failed to plead facts sufficient to pierce the corporate veil and find Mr. Pendas liable. Plaintiffs argued that they didn't need to pierce the veil, they only needed to plead that a corporate officer like Mr. Pendas participated in the infringement.
Judge Burke sided with the plaintiffs:
After a careful review of the caselaw in this area, the Court agrees with Plaintiff that a corporate officer/owner may be personally liable for his own acts of direct infringement, even if he committed those acts as part of his work for the corporation.
Id. at 9.
As to the specific allegations in the case, the Court found ...
It's a good thing Unsplash has a seemingly unending supply of penny pictures for these Pennypack posts.Adam Nir, Unsplash
Sometimes it seems like every IP case, at some point, involves a dispute about a late disclosure and whether the Pennypackfactors excuse the late disclosure.
As I've complained before, the Pennypack factors originate in an old Third Circuit case and don't fit modern litigation practices very well.
In fact, at times they can feel backwards: they require that the "importance" of the evidence weighs in favor of permitting late disclosure. But if the evidence is important, why should a litigant be allowed to withhold …
If you have a few minutes to kill, go to your AI chatbot of choice and ask it to draw you a picture. Whatever you want. A raccoon perhaps.
Then slowly have it change that picture, and see how long it takes it to simply refuse. "Take away its fur," you'll say. "Make it slightly longer." "Give it 9 fingers on the front claws and 3 on the back." "Now he's wearing a tracksuit." "Now he's embarrassed about his baldness, give him hair plugs."
I feel that I have sinnedAI-Generated, displayed with permission
One of the stumbling blocks I have noticed is asking for a lawyer without glasses. No matter how clear you are, they always seem to sneak back in.
I can relate. I remember the first time I went to the DMV in Delaware. The guy behind the counter was, maaaaayyyybe 25. I had so far managed to avoid the corrective lenses note on my license and was eager to maintain this sign of my vigorous youth (I think I was 31).
I put my face in the little goggle machine. First row - easy. Second row - not so much. Row 3 - pretty bad. The guy at the counter kept saying "really? Try again." This went on for like 10 minutes. I know that reading it now, it sounds like he was trying to cut me a break. But if you were there, looking into his stupid perfect eyes, you would know that he was just genuinely baffled that I could not read that line. I think it shook him.
This is all a long-winded introduction to Judge Andrews' opinion in New Directions Tech. Consulting, LLC v. AbbottLabs. Inc., C.A. No. 25-506-RGA (D. Del. Mar. 2, 2026). The case had been referred to Magistrate Judge Tennyson to resolve an early 101 motion. Judge Tennyson denied the motion in a manner reminiscent of Judge Noreika's practice, finding that—with 160 claims asserted—the parties had not given sufficient attention to the representative claim analysis to resolve the entire case, and that it was not an efficient use of the Court's time to resolve just the few claims actually discussed.
The defendant filed objections to the R&R which Judge Andrews denied, based in large part on several briefing irregularities:
The Magistrate Judge points out that Defendants supplemented their brief with a seven-page chart. The Magistrate Judge states, correctly, that Defendants "circumvent[]" the briefing page limits of the Local Rules. More significantly, the Magistrate Judge describes the briefing as "conclusory and largely unhelpful." I agree. It is Defendants' burden to show representativeness. Defendants failed
Id. (internal citations omitted).
Indeed, the Court seems to have been especially bothered bu the fact that this chart was in 8-point font, which it described as a violation of the local rules:
There are also Local Rules about font size. D.Del. LR 5.1. l(a) (12 point font for "[a]ll printed matter"). I do not think the exception for "[ e]xhibits submitted for filing," D.Del. LR 5.1.1.(b)(l), which appears to deal with pre-existing evidence, applies. Were the Magistrate Judge trying to load up on Defendants, she might have mentioned that the text of the seven additional pages is in what appears to be 8 point font.
Judge Andrews drove the point home by adding in a bit of 8-pt font for flare:
J. AndrewsJ. Andrews
Let this serve as a reminder that, unless that danged kid at the DMV is your judge, please observe the font requirements.
Whoever drafted the responding party's timeline in this case should write a book about how to draft persuasive timelines.Rita Morais, Unsplash
In D. Del. the vast majority of discovery motions are brought as discovery disputes. Basically, the parties meet-and-confer, and if they are unable to resolve the dispute, they file a joint letter or jointly call chambers (depending on the judge) to schedule a conference. In the lead up to the conference, they then file short (2- to 4-page) letters about the dispute, and the Court resolves it—possibly before the teleconference.
Do We Even Have a Dispute?
Sometimes, though, the process breaks down when the parties don't agree that they actually have a dispute. That's what …
We've posted a lot about motions for reconsideration, which tends to be a risky procedural maneuver that rarely wins (although it does happen) and often backfires by further burdening a busy court.
Motions for reconsideration can be granted where there is new evidence, a change in controlling law, a clear error of fact, or a clear error of law. This week, we got a lengthy decision from Chief Judge Connolly that touches on what exactly a "clear error" of law means.
The Court found that the standard for "clear error" is actually pretty unclear in Third Circuit and Supreme Court precedent—although other courts have addressed it:
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