You're drafting a brief in D. Del., and you're not sure what it's supposed to look like. You're in luck! The local rules tell you exactly what sections you need to include in an opening or answering brief (see LR 7.1.3(c)(1) for more detail):
Two tables (a table of contents and a table of authorities).
"A statement of the nature and stage of the proceedings."
"A summary of argument, setting forth in separately numbered paragraphs the legal propositions upon which the party relies."
"A concise statement of facts, with supporting references to the record, presenting the background of the questions at issue."
"An argument" with "appropriate headings distinctly setting forth separate points."
So much in our world is phrased in dire, and certain, terms. "No Running," "High Voltage," "Angry Birds"—
Bellini looks evil, but she wants you to know that she loves you and she is just as fluffy as she appearsMe, displayed with permission
It can be hard to differentiate between those warnings that are merely distant precautions (check engine), and those that represent an understanding of a dark and heartless fate (again, angry birds). An example may help to illustrate this point.
I give you the following passage in Judge Connolly's form scheduling order on the use of pincites:
Pinpoint citations are required in all briefing, letters and concise statements of facts. The Court will ignore any assertions of uncontroverted facts and controverted legal principles not supported by a pinpoint citation . . .
Scheduling Order [Non-Patent Case], Para. 4 (Rev. March 2, 2020)
Looking at that, one might think there was some wiggle room. One would be incorrect.
We know this courtesy of a recent teleconference in In re: Seroquel XR Antitrust Litigation, C.A. No. 20-1076-CFC (D. Del. Oct. 4, 2023) (Hearing Tr.). One of the plaintiff groups had submitted briefing in support of their motion for cert and attached 466 pages of expert reports without any pincites. The defendants filed a later complaining about the issue as well as the general attachment of entire reports and transcripts rather than exhibits.
It's easy to fall into the trap of separating rules into "technical" and "substantive" and on that basis to choose which must be followed and which can be safely ignored. Judge Noreika neatly illustrated how foolhardy this practice can be last week, when she issued a brief, two-sentence order denying a summary judgment motion:
WHEREAS, pursuant to the 47 Scheduling Order, a separate concise statement of facts shall be filed with any summary judgment motion; and WHEREAS, Plaintiff did not file such statement with its 194 Motion for Summary Judgment. THEREFORE, IT IS HEREBY ORDERED that the motion is DENIED for failure to comply with this Court's procedures set forth in the Scheduling Order
Yesterday, Magistrate Judge Burke released a new form scheduling order. There are redlines embedded below.
Here is a quick rundown of some of the changes in the patent scheduling order:
Added from Judge Andrews' scheduling order:
A requirement for plaintiffs to provide licenses and settlement agreements as part of their disclosures
A prompt in the scheduling order for the parties to consider a staged reduction of asserted claims and prior art, before and after claim construction (this comes up a lot)
Added from Judges Connolly, Noreika, and/or Hall's scheduling orders:
A requirement to include chart at the end listing the deadlines all together (convenient!)
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
