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Entries for search: Stark

Scheduling a District of Delaware Trial Just Keeps Getting Harder

Nathan R. Hoeschen, Nov. 12, 2020
Scheduling COVID-19

As we've covered pretty exhaustively, its getting harder and harder to schedule a trial next year in the District of Delaware. In fact, given the huge number of delays and cancellations of trials that were previously scheduled for this year, most of 2021 is already double or triple-booked with trials.

So it's no surprise that parties that don't have firm dates already on the calendar for next year are eager to lock something—anything—down. That's what happened in Arendi S.A.R.L. v. LG Elecs., Inc., et. al., C.A. No. 12-1595 (LPS), last week. In that case—which is actually seven related cases—the scheduling order (as modified by recent COVID-related stipulation) set a deadline for dispositive motions that had briefing set to conclude next …

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On The Hazards of Talking to Your Witness During a Deposition in Delaware

Andrew E. Russell, Nov. 9, 2020
Rule 30.6 Rule 30

hiroshi-kimura-rtX4wxMEI2M-unsplash.jpg
Hiroshi Kimura, Unsplash

Since the early 2000's, the District of Delaware local rules have prohibited talking to a witness about the subject matter of their deposition testimony during a deposition:

RULE 30.6. Depositions Upon Oral Examination.
From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.

It's not uncommon for visiting counsel defending depositions in Delaware cases to not know this rule. …

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Summary Judgment Granted Where Doctrine of Equivalents Analysis Merely "Repackaged" Literal Infringement Analysis

Andrew E. Russell, Oct. 30, 2020
DOE SJ

Chief Judge Stark this week granted a motion of non-infringement under the doctrine of equivalents due to the slim DOE analysis relied on by the patentee's expert.

Interestingly, the expert had offered some testimony framed in terms of the usual function-way-result DOE test:

[T]he Accused Products perform substantially the same function (producing densitometry/densitometric models for use in assessing bone density), in substantially the same way (determining linear attenuation coefficients of an object in several tomographic scans and combining this information using the Feldkamp algorithm to determine the grayscale values of voxels and the corresponding HU units thereof of a 3D CBCT volume of the object), to achieve substantially the same result (3D volumes that include information for depicting quantitative differences …
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Does It Matter Whether a Patent Plaintiff Is Actually Located in Delaware?

Andrew E. Russell, Oct. 28, 2020
Jumara Transfer

Globe
Adolfo Félix, Unsplash

The short answer is: it depends on the judge.

These days, most Delaware patent plaintiffs are incorporated in Delaware but not located here. Different District of Delaware judges have gone different ways on the question of whether a plaintiff's location actually matters when considering whether to transfer a case out of Delaware.

Transfer motions are governed by the twelve "Jumara factors," and plaintiff's choice of forum gets "paramount" weight except—some judges have held—when the plaintiff is not actually located in Delaware.

Judge Connolly today answered this question with a resounding "no," holding that the location of plaintiff's principal place of business does not matter to whether it's choice of forum gets paramount weight: …

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Waiver, and How the Judges Have Handled Public Access to Remote Hearings

Andrew E. Russell, Sept. 24, 2020
Litigation COVID-19

It's interesting that the Court is now regularly offering public access information for remote hearings. I can't recall it doing that before the coronavirus.

The only pre-coronavirus remote hearings I can think of were for scheduling and discovery dispute conferences, where public access is not usually a concern. Scheduling conferences often took place privately in chambers even when they were in-person, and discovery dispute conferences often involve confidential information anyway. It looks like they judges are still handling these how they always have.

These days, however, the Court regularly holds all kinds of other, more substantive hearings remotely, and most of the judges have been taking steps to allow the public to attend. Here is what the judges have been …

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Updated Zoom Link for Today's Xcoal Trial

Andrew E. Russell, Sept. 15, 2020
COVID-19

If these public Zoom links become more common, I'll likely stop posting about them (especially now that jury trials are set to resume). But for now, here is the Zoom link for today's trial in Xcoal, which restarted at 9 am this morning:

ORAL ORDER: The bench trial is available to the public by telephone, using dial in: 1-703-552-8058 and Conference Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/99196614906: Meeting ID: 991 9661 4906 Password: 166996. Audio or video reproduction of the proceeding is strictly prohibited. ORDERED by Judge Leonard P. Stark on 9/14/20. (ntl) (Entered: 09/14/2020)

As a reminder, this is the trial that was derailed immediately after opening statements by the receipt of an …

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Xcoal Trial Derailed by "Anonymous Letter," like "Something Out of a John Grisham Novel"

Andrew E. Russell, Aug. 26, 2020
Trial Litigation

Artist's rendering of the
Brando Makes Branding, Unsplash

The trial in Xcoal Energy & Resources v. Bluestone Energy Sales Corp., C.A No. 18-819-LPS (D. Del.) was adjourned this morning following receipt by the parties of an "anonymous letter." The trial had started yesterday, after the Court previously overruled Xcoal's due process objections to a remote trial.

All of the discussion of the letter was at sidebar, so its contents are not yet public. But it must be something interesting!

The parties had asked for a sidebar immediately after opening statements yesterday. Counsel mentioned that the situation is like "something out of a John Grisham novel."

At the sidebar, they read the "anonymous letter" into the record, and both parties …

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Another Jury Trial Postponement

Andrew E. Russell, July 20, 2020
COVID-19

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Last week, in between Judge Stark's postponement of the Sunoco trial and the Court's extention of its ban on jury trials, Judge Andrews also postponed a scheduled August 18 jury trial, without setting a new trial date:

ORAL ORDER: The jury trial scheduled for August 18, 2020, is POSTPONED. Ordered by Judge Richard G. Andrews on 7/15/2020. (nms) (Entered: 07/15/2020)

ChanBond, LLC v. Atlantic Broadband Group, LLC, C.A. No. 15-842-RGA, D.I. 513 (D. Del. July 15, 2020).

He continued the trial after defendants' counsel filed an essentially unopposed request based on rising COVID-19 rates, the importance of live testimony, and the fact that plaintiff is an NPE.

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D. Del. Extends Jury Trial Ban Through August 31

Andrew E. Russell, July 17, 2020
COVID-19

The District Court today extended its ban on jury trials through August 31.

Chief Judge Stark had previously scheduled at least one jury trial for early August, but then rescheduled it after plaintiff raised fairness questions and pointed out the continued rise in the number of COVID-19 cases.

The Delaware state courts are likewise still in Phase Two of their reopening plan (no jury trials). Yesterday Law360 also reported that the Court of Chancery pushed this months' Tesla/SolarCity 10-day bench trial out to 2021 due to Coronavirus safety concerns.

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