Although it requires some reading between the redacted lines, Judge Stark's recent ruling in H. Lundbeck A/S v. Apotex, Inc., C.A. No. 18-88-LPS is worth the effort. It shows that while sometimes exclusion orders leave the door open a crack to introduce the excluded evidence in some other fashion, that is not always the case.
Entries for date: 2020
Today, Chief Judge Stark posted a public Zoom link for a bench trial starting Tuesday morning:
The bench trial is available to the public by telephone, using dial in: 1−703−552−8058 Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/93843275500, Meeting ID: 938 4327 5500 and Passcode: 974842. Audio or video reproduction of the proceeding is strictly prohibited.
This is a competitor case involving a contract for the delivery of coal—it's the one where the defendant attempted to delay the trial using due process arguments. Trial is scheduled to start Tuesday and run through Friday:
- Tuesday, August 25: 9 am to 5 pm
- Wednesday, August 26: 9 am to 5 pm
- Thursday, August 27: 8:30 am to 10 …
In First Quality Tissue, LLC v. Irving Consumer Products Ltd., C.A. No. 19-428-RGA (D. Del.), defendant swapped its previous counsel, Michael Best, for Latham and Watkins, and sought a twelve-week extension of the schedule.
The parties agreed that some kind of extension was needed regardless of the change in counsel, with numerous pending disputes, 24 noticed depositions, and only 3 days left in discovery. Plaintiff proposed a 4-week extension. Even with four weeks, the parties would likely have to dual-track the depos to get them done in time.
Judge Andrews, however, did not buy the idea that a change in counsel warrants a large schedule extension, and held that the responsibility for …
Judge Andrews recently granted a motion in limine precluding a party from presenting expert opinions that were not disclosed until the expert's deposition -- without analyzing the Pennypack factors.
The correct procedure for challenging a late disclosure of theories or evidence has long been a matter of some debate in Delaware. There are cases suggesting that the party seeking to update its contentions should move for leave to do.
More commonly, a party will simply serve updated contentions or expert reports that the opposing party moves to strike. Regardless, the motions are generally analyzed under the demanding Pennypack factors, with the usual result that the …
You can't gain access to privileged communications by claiming your discovery request seeks "just the facts."
In a lengthy oral order yesterday, Judge Burke denied a motion to compel responses to interrogatories seeking plaintiffs' communications with their prosecution counsel.
For the first interrogatory, the decision was "not a difficult one." It sought "all facts" provided to prosecution counsel "regarding certain subject matter relevant to Defendants' inequitable conduct defenses and counterclaims." There's no way to respond to an interrogatory like this without revealing the substance of attorney-client communications.
The second was "a bit less sweeping[,]" but not by much. It asked the plaintiffs to identify all prior art and FDA correspondence provided to their prosecution counsel, including details like the day …
Chief Judge Stark today denied an emergency request by defendants to delay a remote bench trial scheduled to start next week.
The Court had previously solicited the parties' preferences on how to handle trial and, before the pretrial conference, ordered that the trial would be fully remote. At the pretrial conference, neither party objected to that ruling.
Last week, however, Defendants sought emergency relief to delay the trial in order to convert it to a "partially remote" trial, submitting a declaration from their client that they had not authorized their now-former in-house counsel to agree to a fully virtual trial.
They cited due process rights and the importance of in-person testimony …
In trade secret litigation, parties often fight bitterly over the level of particularity with which the party asserting misappropriation has described its trade secrets. That dispute frequently plays out in connection with interrogatory responses or other trade secret contentions, served after the initial pleadings are closed.
However, it can arise earlier in the case. In a recent order, Judge Andrews dismissed a federal trade secret misappropriation claim under Rule 12(b)(6) because the complaint identified "large, general areas of information that Plaintiff alleges to have shared with Defendant" but failed to "identify what the trade secrets are within those general areas."
Notably, the order, issued in Lithero, LLC v. Astrazeneca Pharms. LP, C.A. No. 19-2320-RGA (D. Del.), states …
In his lengthy ruling on the post-trial motions in Pacific Biosciences, Chief Judge Stark also set forth his views on whether indefiniteness may be tried to a jury, an issue that seems to come up repeatedly:
[Defendant] insists that the Supreme Court's decision in Teva vs. Sandoz[, 574 U.S. 318 (2015),] made indefiniteness an issue exclusively for the court to decide. I disagree. I continue to believe that I have discretion to put . . . indefiniteness before the jury where[,] as here, there are subsidiary fact disputes that inform the indefiniteness decision as a matter of law. [Defendant] has cited no contrary Federal Circuit case.
In fact, instead, the Federal Circuit [has] made clear that indefiniteness is …
On Friday, Chief Judge Stark issued his opinion on post-trial motions in Pacific Biosciences of California, Inc. v. Oxfore Nanopore Tech., Inc., C.A. No. 17-275-LPS-CJB (D. Del.).
You may remember it as the case which made news at the time due in part to the mention of coronavirus in the opening statements.
The trial took place March 9-18, just as the first COVID-19 lock downs were ramping up.
Incredibly, both parties touted coronavirus-related effects of their products in their opening statements at trial. Plaintiff suggested that its product could "help develop a vaccine" for the coronavirus. Defendant went even further:
[Defendant made] a product that is changing lives as we speak. Whether it is helping people …
Judge Andrews recently postponed another patent jury trial that had been scheduled for September 21, 2020.
The ruling in Baxalta Incorporated v. Bayer Healthcare LLC, C.A. No. 17-1316-RGA, D.I. 529 (D. Del. Aug 12, 2020) followed the submission of a joint status report where the plaintiffs suggested the case should go forward, citing prejudice to them if the case remains unresolved for the foreseeable future.
The defendant responded by pointing to the obvious difficulties of holding a trial when "no witness resides in Delaware" and lead counsel and their "entourages" are from out of state.
Judge Andrews notably stated that he believed it would be possible …
