Hearsay can really trip attorneys up. The many hearsay exceptions may or may not apply to particular testimony, and those exceptions are spread across multiple rules that themselves may or may not apply. And there can be multiple layers of hearsay—with exceptions applying to some layers but not others.
Last week, in Agilent Technologies, Inc. v. Axion Biosystems, Inc., C.A. No. 23-198-CJB (D. Del.), the Court addressed double hearsay in the summary judgment context.
Agilent claimed false advertising by Axion. Axion moved for summary judgment of no false advertising. As part of ruling on that motion under the circumstances of the case, the Court looked at whether "actual customer deception" had occurred.
Many of us have the experience of going home again for a while. Maybe you just got back from college and haven't found a decent job yet. Maybe you had a breakup and you needed a place to stay while you sorted out a new place. Maybe your prior home was consumed by a vengeful earth reclaiming what you had stolen.
AI-Generated, displayed with permission
In any case, going home is rarely the result of things going exactly how you'd want them to.
For no reason at all, this leads me to Judge Connolly's recent order in Inari Medical, Inc. f/k/a Inceptus Newco1 Inc. v. Inquis Medical, Inc., C.A. No 24-1023-CFC (D. Del. Mar. 12, 2026) (Oral Order). Judge Connolly had referred the case to Magistrate Judge Tennyson early last year when the parties raised a protective order dispute. Since then, the parties had filed five motions for discovery dispute teleconferences. Upon the filing of the fifth, rather than receiving the usual order scheduling a teleconference, Judge Connolly issued the oral order below:
The Court's January 21, 2025 oral order referring the case to Magistrate Judge Eleanor G. Tennyson for all matters relating to discovery and the protective order is WITHDRAWN. The joint motion for a teleconference to resolve discovery disputes (D.I. 289 ) is GRANTED IN PART and DENIED IN PART. The Court will hear oral argument in person in Courtroom 4B on April 9, 2026 at 9:00 a.m. on the matters outlined in the joint motion. The parties should expect that going forward in this action the party that loses a discovery or protective order dispute will pay for the costs and fees the winning party incurred in litigating that dispute. As both parties have said they are available on April 9, see D.I. 289 at 4, the Court will not agree to move the April 9 argument, though obviously the Court does not oppose canceling the argument if the parties reach an agreement that resolves the disputes in question. The movant for any particular issue must file no later than March 20, 2026 a letter in support of its motion and a proposed order that specifies the exact relief being sought. The respondent shall file no later than April 1, 2026 a letter in response. The letters must be in 14-point font and shall not exceed 1,250 words.
Id.
It's pretty rare to see the Court discuss fees in the context of a discovery dispute, and the move to an in-person conference is also uncommon (although less so). It'll be interesting to see if we get more of these orders for cases that cross the 5-dispute Rubicon.
Parties in patent cases involving software typically agree to protective orders or stipulated agreements setting out the terms for review and use of source code.
These days, the basic outline of these procedures are usually that the party with the source code offers that code for an inspection at their attorneys' offices. The inspection takes place on a laptop with software for reviewing the code, and the reviewers are prohibited from taking the code directly off of that machine.
Instead, parties are usually limited to requesting paper printouts of limited sections of the code. This may seem odd, but it protects source code from leaking in the event of a data breach at a law firm …
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 …
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