A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: April 2021

Here Is an Overview of the Changes in Judge Noreika's New Form Scheduling Orders

Andrew E. Russell, April 6, 2021
Scheduling Orders Scheduling Order

Form Scheduling Order
The Honorable Maryellen Noreika

Judge Noreika updated her form scheduling order yesterday. Here are the changes:

  • Separate deadlines for fact and expert discovery cut offs. Judge Noreika's old form orders, and several other judges' form scheduling orders, set a cut off date for "all" discovery and a deadline for substantial document production. But parties often also set a separate deadline for fact discovery, so that there is a clear delineation for when fact depositions and any remaining document production need to end before expert reports occur. This resolves that issue.
  • Joint claim chart changes. Intrinsic evidence must now be submitted in an appendix rather than with the joint claim chart. This may help with the common issue that …
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D. Del. Officially Lifts Jury Trial Ban

Andrew E. Russell, April 5, 2021
COVID-19 Trial Calendar

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Today, the District of Delaware formally lifted its jury trial ban:

The Standing Order RE: Criminal and Civil Jury Trial Suspension issued February 5, 2021[,] expires today, April 5, 2021. Based on current conditions and after consultation with the Court’s Reopening Committee, the Court has decided that it will not, at this time, extend the order. Whether and when any particular case will proceed to trial is left to the discretion of each individual judge of the Court.

There is a jury trial scheduled for today in JHL Pharmaceuticals, LLC v. PuraCap Laboratories, LLC, C.A. No. 18-553-MN (D. Del.), although it's not clear yet from the …

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14 Discovery Disputes is One Too Many

Andrew E. Russell, April 2, 2021
Discovery Dispute

Tennis Court
Bannon Morrissy, Unsplash

On Wednesday, Judge Burke issued the following order cutting the parties off from further discovery dispute teleconferences—but not discovery disputes—after they brought their fourteenth request for discovery assistance in just over a year:

ORAL ORDER: The Court, having reviewed the parties' . . . request [for] a discovery teleconference . . . hereby notes as follows: (1) since the Court was referred this matter in February 2020 to resolve discovery/protective order disputes, this is the 14th different time that the parties have sought the Court's assistance in that regard; (2) as part of those 14 different requests for Court assistance, the parties have brought the Court a total of 31 different disputed issues to …
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Daubert on Defense

Nathan R. Hoeschen, April 1, 2021
Daubert

This picture of a duck is unrelated to the article
Ross Sokolovski, Unsplash

Under Judge Andrews' form scheduling order, the parties are allotted a certain number of pages for both Daubert and summary judgment briefs. Given how difficult it is to win most Daubert motions in the district, it might sometimes make sense to forego filing one in order to devote more pages to briefing a seemingly stronger SJ motion.

Yesterday, Judge Andrews gave the district a reason to rethink this strategy.

The defendants in M2M Solutions LLC v. Sierra Wireless America, Inc., C.A. No 14-1102-RGA-CJB, moved for summary judgment of non-infringement, relying largely on their expert's opinion that the devices did not practice a particular limitation. D.I. 213 at 3 (D. Del. Mar 31, 2021). The plaintiff responded by pointing to various alleged errors in the defense expert's methodology, but failed to actually file a Daubert motion to strike the opinion. See id. Judge Andrews found this failure fatal to the plaintiff's case, stating:

M2M’s objections may be the appropriate subject of a Daubert motion, but M2M does not cite any authority for the proposition that critiquing an expert’s methodology in the absence of a motion to exclude the testimony is sufficient to create a material dispute of fact.

Id. at 4.

The bit of this opinion that I find interesting is ...

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