Judge Williams issued a new form scheduling order last week. Updating his previous orders, he primarily added text mirroring Judge Connolly's procedures that require parties to rank summary judgment motions (where if any motion is denied, lower-ranked motions will not be considered):
(d) Ranking of Summary Judgment Motions. Any party that files more than one summary judgment motion shall number each motion to indicate the order in which the party wishes the Court to review its pending motions. The first motion the party wishes the Court to consider shall be designated #1,the second motion shall be designated #2, and so on. The Court will review the party's summary judgment motions in the order designated by the party. If the Court decides to deny a motion filed by the party, barring exceptional reasons determined sua sponte by the Court,the Court will not review any lower ranked summary judgment motions filed by the party.
See Judge Gregory B. Williams Form Scheduling Order, ¶ 13(d).
This text mirrors that of Chief Judge Connolly's current form order, with only a few changes. But he did not adopt the ranking procedure for Daubert motions.
Interestingly, Judge Williams adopted the ranking procedure for both patent and non-patent cases; Chief Judge Connolly only applies it to patent cases.
Chief Judge Connolly's procedures have been a success as far as I've seen. They are easy to understand, and in practice ranking SJ (and Daubert) motions helps the parties and the Court understand where to focus their energies, both in briefing and at oral argument. Plus, the consistency with which the procedures are applied makes it easy to set expectations and advise clients.
Judge Williams' revised form orders (both his ANDA order and non-ANDA order) include a few other minor updates as well, such as a small change to the claim construction meet-and-confer process, and separate deadlines for the supplementation of final infringement and invalidity contentions.
Update Your Forms!
Some Delaware attorneys keep OCR'd versions of the Court's form orders around to make it easier to do new scheduling orders as cases come in. This worked for Judge Stark, who if I recall correctly didn't change his form order for ~8 years. But as a whole the judges seem to change their form orders often enough that the best practice in my view is to just check the Court's website and build a new OCR version each time.
Judge Williams has already rejected one proposed scheduling order for failing to adopt the new form:
ORAL ORDER: The Court has reviewed the parties' letter of October 18, 2022 and the proposed scheduling order (D.I. 28). The proposed scheduling order does not contain certain language included the Court's form scheduling order which was updated as of October 18, 2022 and is posted at http://www/ded/uscourts.gov (see Chambers, Judge Williams, Forms). No later than October 27, 2022, the parties should resubmit their proposed scheduling orders utilizing the Court's updated form scheduling order as of October 18, 2022.
Don't let it happen to you. If you're in the process of negotiating a scheduling order in a Judge Williams case right now, make sure you're using the most recent version.
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