Earlier this year, the District of Delaware implemented a new policy of requiring bar cards, or an order from the Court, to bring electronics into the courthouse.
Courthouse staff have accepted out-of-state bar cards just fine. But one recurring issue is that some states simply do not issue bar cards, or only issue them optionally. Not all out-of-state attorneys have them.
As a result, in the lead up to hearings, parties often file stipulations or unopposed motions for leave for various people to bring electronics into the courthouse. The Court usually—but not always—grants these.
This post is just a reminder that, in such stipulations and motions, it's best …
Many years ago now (I'm so old), then-Judge Connolly (now Chief Judge Connolly) brought forth onto this district the gift of the word limit (at least in cases assigned to Judge Connolly). Nevermore would Delaware counsel spend hours futzing (technical term) with fonts and orphan control (it really sounds ominous to put those words together) in an effort to get our briefs down to the mandated 20 pages (this paragraph has waaay too many parentheticals).
For a time it seemed we would have a new golden age of beautiful briefs where every section began proudly atop its own page.
(hums patriotic tune while shedding a single tear)National Archives
But alas, the conversion to a word limit spawned its own set of tactics to limit the number of words that must be counted. One such tactic—borrowed, in fact, from the days of the page limit—is the use of a table of abbreviations at the front of the document. Judge Connolly's opinion yesterday in Synopsys, Inc. v. Bell Semiconductor, LLC, C.A. No. 22-1512-CFC (D. Del. Dec. 6, 2023) (Mem. Op.), neatly illustrates the pitfalls of this method.
The infringement defendant, Synopsis (plaintiff in the DJ action), moved for SJ of no indirect infringement. As a result of filing three other SJ motions and two Dauberts, Synopsis was running up against the combined word limit. Accordingly, each of the SJ briefs had a table of abbreviations right after the table authorities, seting forth the definitions of, among other things the "asserted claims." The body of the brief, however, did not specifically mention this table and just referred to the Asserted Claims generally throughout.
Chief Judge Connolly found this practice unclear, particularly because ...
Any time someone moves to withdraw, the question is: Will the client be able to convince the next set of lawyers that the client will pay?Micaela Parente, Unsplash
Having to move to withdraw because a client won't pay is the absolute worst. You have ethical duties to your client, but you can't work for free. You are stuck in a position where you need to tell the Court enough that it will let you out—but you can't tell it everything without violating the ethics rules. The local rules also place some procedural hoops in the way of a motion to withdraw. It's tricky!
Even worse is when the other side opposes your withdrawal, because then you are potentially …
Typically, if you want know how much the opposing counsel is spending on a case, you can come to a rough estimate based on how much they seem to be filing. Alternatively, you can just ask, which usually goes something like this:
Q. So . . . uh, how much are you spending?
A. None of your beeswax nerd.
Fin.
Hold your applause pleaseAI-Generated, displayed with permission
Over the summer, however, there was a rather unique case where the Court ordered the production of documents showing the plaintiffs' costs of litigation thus far and future estimates.
It started with an offhanded request in a discovery dispute letter. The defendant requested production responsive to RFPs on litigation funding documents generally, which they claimed were "relevant to damages and, as this Court has found, for purposes of cross-examination about bias." Oasis Tooling, Inc. v. GlobalFoundries US Inc., C.A. No 22-312-CJB, D.I. 184. The briefing on the issue was no more than a quarter-page.
Judge Burke granted the motion—which at this point clearly implicate litigation costs—in a brief oral order. Id., D.I. 211. Thereafter plaintiff produced the litigation funding agreement (redacted to remove the expected spend at various case milestones) but refused to produce the actual invoices or provide an overall amount paid to date.
Hence another discovery dispute aimed at "enforcing" the Court's ...
I have no idea what the accused product looks like, but here is a "viral whole-genome sequencing experiment."National Cancer Institute, Unsplash
Last month, Judge Williams granted a permanent injunction in Natera Inc. v. ArcherDX, Inc., C.A. No. 20-125-GBW (D. Del. Nov. 21, 2023). The Court unsealed the opinion on Friday, and I thought there were enough interesting things about it to warrant a short post.
The Court granted the injunction only in part, and permitted the defendant to continue using the personalized cancer monitoring product, referred to as "PCM," for "ongoing clinical trials, for updating old studies undergoing peer review, and for limited quality control." The parties also agreed that the injunction should exclude use …
Is 3.5 hours enough time for a battle of the experts?AI-Generated
Parties often offer expert declarations during the claim construction process.
These declarations can be of varying utility. Sometimes, parties offer a detailed and helpful explanation of how the technology works. Other times, parties offer a useless, conclusory expert declaration that says little more than "a person of ordinary skill in the art would understand the term to mean [whatever construction the attorneys who hired me proposed]."
But, while declarations are common, in my experience live testimony from experts during a Markman hearing is pretty rare in D. Del. That's why I thought it was worth noting that, this week, Judge Burke granted an opposed request to permit …
Many things find their way onto an exhibit list that are not clearly admissible, or even exhibits in the quotidian sense. The rules are often vague about the propriety of presenting things like prior pleadings and discovery responses, much less the mechanism for doing so, and thus its fairly common to see all these and the kitchen sink placed on an exhibit list. Once there, they mostly molder, unremarked upon, until they happen to become relevant enough to spark a dispute.
I'm usually pretty harsh on the quality of these AI drawings, but I think this one is a bangerAI-Generated, displayed with permission
Last week (whilst I was on vacation acquiring a flu that dogs my every step like grim death) Judge Williams set forth a pretty clear rule prohibiting the inclusion of privilege logs on an exhibit list:
The Court grants-in-part Milwaukee's motion to exclude the privilege logs, but denies the remainder of Milwaukee's motion without prejudice. The privilege logs are not relevant because the logs make no material fact more or less likely. Even if Milwaukee were to have waived privilege with respect to its clearance program, the privilege logs would not be relevant because the mere assertion of privilege is "unremarkable and irrelevant."
Persawvere, Inc. v. Milwaukee Elec. Tool, Corp., C.A. No. 21-400-GBM, at 6 (D. Del. Nov. 21, 2023) (Mem. Ord).
The parties raised the issue via a MIL seeking to remove the log from the exhibit list and to prohibit the playing of any testimony wherein deponents had claimed privilege. The whole thing was part of a larger dispute about waiver of privilege over testing of the accused products. Judge Williams granted the motion as to the privilege log itself (by my quick search, the first ruling on the issue in Delaware) but denied it as to the testimony, noting If the [testing] is put at-issue at trial, Persawvere's introduction of deposition testimony that includes a deponent asserting privilege may become relevant." Id.
We've written before about the risks of a deponent consulting with counsel during a deposition. This week, visiting Judge Wolson ordered a deposition reopened after counsel did just that:
AND NOW, this 27th day of November, 2023, upon consideration of Stragent’s Motion For Sanctions Against VCUSA Pursuant To Fed. R. Civ. P. Rule 30(d)(2) For VCUSA’s Violation Of Local Rule 30.6 And Established Law (D.I. 100), and for the reasons set forth on the record during a hearing with the Parties, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED, to the extent Stragent seeks to reopen the deposition of [the deponent] …
We all know what ellipses (". . .") mean, right? It means that something in a quote was omitted. According to Bluebook Rule 5.3:
“Omissions of a word or words is generally indicated by the insertion of an ellipsis, three periods separated by spaces and set off by a space before the first and after the last period (“♦.♦.♦.♦”), to take the place of the word or words omitted. Note that “♦” indicates a space.”
In yesterday's lengthy Mavexar opinion, however, Chief Judge Connolly pointed out that ellipses in a transcript can mean something else entirely. They are to be used to
reflect the fact [that the witness] trailed off and was silent for a …
Here you can see Mavexar, IP Edge, and their counsel after yesterday's opinion.Mae Mu, Unsplash
Wow! Today, in the Mavexar cases, Chief Judge Connolly issued a huge, 102-page opinion referring plaintiffs' counsel to the Texas Supreme Court's Unauthorized Practice of Law Committee, the PTO, and the Department of Justice to determine whether counsel violated various rules—or federal laws:
As it appears that [three Mavexar employees] engaged in the unauthorized practice of law, I will refer them to the Texas Supreme Court's Unauthorized Practice of Law Committee.
* * *
I believe it appropriate to bring these matters to the attention of the PTO and the Department of Justice to allow them to conduct further inquiry into whether the PTO's rules or [18 U.S.C.] § 1001 were violated. The Department may also deem it appropriate to investigate whether the strategy employed by IP Edge to hide from the defendants in these cases and the Court real parties in interest, including France Brevets, violated any federal laws.
Nimitz Technologies LLC, v. CNET Media, Inc., C.A. No. 21-1247-CFC, D.I. 34 at 98, 100 (D. Del. Nov. 27, 2023).
If you're not familiar with them, Mavexar appears to be an entity that recruits people to serve as the sole members of shell LLCs that assert patents. The recruited individuals may not fully understand what is going on, and may get something like 5-10% of the proceeds of the patent infringement suits in exchange for accepting all of the risk. It looks like Mavexar sets up the entities, hires the attorneys, and does the work of selecting targets and even drafting claim charts.
The opinion goes through exactly what these entities and attorneys did—at least, as far as the Court can tell from the factual record and their production, which was apparently full of holes.
In short, the attorneys acted as if they were attorneys for Mavexar and IP edge rather than their nominal clients (the LLCs asserting the patents). They generally didn't communicate with their clients until Chief Judge Connolly started pressing them, which was months after they had been asserting and settling these cases.
Instead, the Court describes how they worked almost exclusively with Mavexar / IP Edge employees. Given that Mavexar ...
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