A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: June 2025

Reminder: The Ethics Rules Prohibit Attorneys From Asking a Third Party to Withhold Information

Andrew E. Russell, June 6, 2025
Third Party Discovery Ethics

Danger Keep Out
Edwin Hooper, Unsplash

Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.

As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:

Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”

Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).

This could be a land mine for the …

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Some Quick Updates from the District of Delaware Federal Bar Association Lunch

Andrew E. Russell, June 4, 2025
Annual Report Congestion

District Court Seal

The Delaware Chapter of the Federal Bar Association held its annual lunch today and, as usual, the District and Bankruptcy Courts provided updates on the state of the courts. There wasn't a lot of new information this year, but here are some quick notes on some relevant items:

  • District court case filings here in D. Del. were down only 2%, compared to 14% nationally
  • Criminal filings were up 14%
  • There was a 7% drop in patent case filings, but we still have 39% of all ANDA cases
  • We are still the biggest court for competitor case filings
  • The Court strives to be fair and not partial to either plaintiffs or defendants
  • Judge Andrews is continuing to take almost a …
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I Can Go to Trial Again!

Nathan R. Hoeschen, June 3, 2025
Stipulation

Entering into a stipulation is easy. You say we both agree to move this date or not assert that patent, and normally the court signs it and everyone goes about their business.

Getting out of a stipulation is harder.

AI-Generated, displayed with permission

If you're wondering just how hard, I present to you Judge Bataillon's opinion this week in Astellas Pharma Inc. v. Zydus, Inc., C.A. No. 20-1589-WCB (D. Del. May 30, 2025).

In that case Judge Bataillon resolved the rare "motion for relief from stipulation." The parties had long ago entered into a case narrowing stipulation in which the defendants dropped their obviousness and anticipation defenses.

Following a trial, then an appeal and a remand, the case was back in Judge Bataillon's hands, and was a bit more complicated. In the interim, it had been consolidated with related cases against other defendants and new claims from a related patent.

Because those other claims and other defendants were not bound by the prior stipulation, Lupin and Zydus argued that ...

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Court Orders Party to Make Unavailable Expert Witness Available for Deposition on a Better Date, or Face Potential Preclusion

Andrew E. Russell, June 2, 2025
Expert Witness Expert Discovery

Turn Around
Jim Wilson, Unsplash

This is something you don't see often. In Kaneka Corporation v. Designs For Health, Inc., C.A. No. 21-209-WCB (D. Del.), the plaintiff contacted the Court after defendant's counsel offered only a single potential date for the deposition of the defendant's expert, and that date was just five days (and three business days) after the expert's non-infringement report.

The case has been going since 2022, with many twists and turns and amended scheduling orders. One of the most recent scheduling orders set deadlines of May 16 for opening expert reports and May 30 for responsive reports, with the close of expert discovery to close on June 13.

The defendant offered an opening report from …

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