Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed. Judge Stark also pushed the November jury trial, but possibly by just a few weeks.
Judge Norieka is considering holding a civil jury trial starting October 26, 2020 in Butler v. Hanover Foods, C.A. No. 19-1221-MN (D. Del.). The parties had their pretrial conference last week, and the judge intends to issue a decision next week about whether to go forward with the trial.
If the Court decides to go forward, this will be the first post-COVID civil jury trial I've heard about so far.
"Substantial completion of document production" is not exactly a bright line.
Is it more than half?
More than 90%?
At least in Delaware, cases interpreting the issue are light on the ground. Usually, when presented with a steaming pile of documents after the substantial completion deadline, the parties will work out some modest schedule extension without any court intervention. This is probably for the best, but it means that the parties are usually working from a blank slate when negotiating the necessity and length of any extension.
Luckily for us, Judge Burke issued an Oral Order …
The Court emphasized that these are just guidelines, not law, and may still be objected to. Here are some highlights:
Jury Selection
- Various screening measures and a mask requirement
- Potential jurors will be split into groups of 25, with no more than two groups in the courthouse at a time
Deliberations
- Deliberations (and breaks) will be in the adjacent courtroom, with windows papered over and microphones disabled, rather than the usual jury room
- No mask requirement in the adjacent courtroom if jurors are 6 feet apart
- Jurors will get a computer with exhibits and a projector; one juror will operate
Courtroom Procedures
- All individuals generally wear masks
- Counsel "speaking from a socially-distanced …
Always a bit terrifying:
The [unopposed] motion to redact (see C.A. 19-311-RGA D.I. 96) is DENIED. The redactions are extensive, and the request to redact is unsupported by any statement under oath. I do not think the motion meets the requirements of Avandia Marketing. Ordered by Judge Richard G. Andrews on 10/2/2020.
Merck Sharp & Dohme Corp. v. Anchen Pharmaceuticals, Inc., 19-311-RGA, D.I. 97 (D. Del. Oct. 2, 2020).
If you want your motion to redact to succeed these days, you really need to keep the redactions narrow, and it's safest to offer ample support.
In M2M Solutions LLC, et al. v. Sierra Wireless Am. Inc., C.A. No. 14-1102-RGA (D. Del.), the parties submitted a joint letter last week asking Judge Andrews to delay their December 2020 PTC and January 2021 jury trial until "spring 2021" due to COVID-19.
Judge Andrews quickly declined, via an oral order issued on the same day:
[T]he Court is not now inclined to continue the trial to spring 2021. Circumstances could change for the better; travel restrictions could be lifted. And the pretrial conference, at least, can be done remotely. The parties may submit a letter after Thanksgiving revisiting the issue in light of then−existing circumstances.
I thought this was interesting. Last week Judge Burke granted a motion to compel a plaintiff's witness to respond on questions about the plaintiff's litigation financing arrangements.
Apparently plaintiff's attorneys instructed the witness not to answer at the deposition, but in the discovery dispute they only argued that the information is irrelevant, and did not raise privilege. Since relevance is not a valid justification for an instruction not to answer under FRCP 30, the Court permitted defendant to re-ask the question and held that plaintiff's witness must answer.
About Those Redacted Versions
I say plaintiff "apparently" objected only on reasonableness grounds because plaintiff never filed the redacted version of its sealed letter brief—a common problem.
If parties continue …
Judge Noreika today awarded $204,261.31 in attorneys’ fees to a plaintiff in a trademark action, after the defendants fired their counsel, failed to obtain new counsel, and eventually had a default judgment entered against them.
She also awarded fees-on-fees, granting attorney fees for bringing the successful fees motion but not for a previous unsuccessful fees motion.
The previous motion was denied due to timing issues. Plaintiffs had filed it more than 14 days after the default judgment, and Judge Thynge issued an R&R holding that the 14-day fees deadline under FRCP 54 had passed.
Judge Noreika then offered the plaintiffs a second chance to file the fees motion. She ultimately disagreed …
Following on Yesterday's post where we noted the odd and pleasing use of "Kludgy," I would like to use today's post to bring attention to another recent Delaware opinion which contains what I can only assume is the only use of the phrase "[y]ou can work with legal but at the end you will have your face burried [sic, obviously] in s***!" in a legal opinion.
The case is Citrix Systems, Inc. v. Workspot, Inc., C.A. No. 18-588, D.I. 411 (D. Del. Sept. 25, 2020), and it is a true ray of light in these dark days.
The opinion describes …
In ruling on § 101 motions to dismiss, the Court typically adopts plaintiff's constructions outright, if plaintiff offers any. Those constructions may or may not be enough to avoid dismissal, but I can't recall any instance where the District of Delaware actually had to reject a construction as implausible under the FRCP 12(b)(6) standard.
Until now. In Synkloud Tech. v. HP, Inc., C.A. No. 19-1360-RGA (D. Del. Sep. 28, 2020), plaintiff tried to bake the § 101 "non-conventional" standard into the proposed claim construction. Clever! But Judge Andrews described the problems with that approach as "self-evident":
Plaintiff states that a person of ordinary skill …
