A Blog About Intellectual Property Litigation and the District of Delaware

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All of the sitting judges in the District of Delaware require, in their form scheduling orders, that each party (or each side) may file no more than three motions in limine.

But winning a MIL can really change the scope of trial by precluding key evidence or arguments. In complex patent cases, parties very often want more (sometimes many more) than three MILs to shape the trial in their favor.

One common attempted solution is to merge multiple MILs together. Instead of "exclude late-disclosed doctrine of equivalents theory" and "exclude a late-disclosed exhibit related to copying," a defendant might file a MIL entitled "exclude untimely theories and evidence" that relates to both of those things, even though they have essentially nothing to do with each other.

We talked last year about how one party tried to do something like that in a Judge Williams action, and failed. Judge Williams split up the combined motions, counted each individual part, and denied everything past the first three.

This week, it happened again. Visiting Judge Wolson swatted away an attempt to cram multiple motions together to evade MIL limits:

My Policies And Procedures limit all parties to five motions in limine absent leave of court. Wirtgen didn’t seek leave to file the seven additional motions that it did. It doesn’t matter that Wirtgen folded them into one omnibus motion or shoehorned them under common headings. Wirtgen has nonetheless raised twelve separate grounds, which violates the spirit and purpose of my Procedures. Accordingly, the final seven motions are DENIED WITHOUT PREJUDICE. To the extent that these issues resurface during trial, I will allow Wirtgen to object then.

Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW (D. Del. Feb. 7, 2024).

Note that visiting Judge Wolson permits five MILs, as opposed to the three that native D. Del. judges normally allow. And that still wasn't enough!

I thought it was worth posting this as another reminder of the risk here. I'm certain that parties will keep trying to evade the MIL limits.

There are undoubtedly times where combining related issues into a single MIL makes sense. But keep in mind that if you cram multiple unrelated issues together in a single MIL, the Court may split them up again and deny everything past the 3-MIL limit. All you are doing is wasting pages you could have used to brief your first three MILs.

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