A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

Annual FBA Lunch: Court Discusses State of Court, Expansion of Judges in 2024

Andrew E. Russell, June 21, 2023
Annual Report Congestion

District Court Seal

The District of Delaware held its annual FBA luncheon today. The presentations were wonderful, as usual, and covered the typical topics. Here are some of the notable points from Chief Judge Connolly's presentation:

  • The state of the Court is excellent, and we are back to having a full bench.
  • The Court will be doing even better next year, when Judge Andrews is planning to take senior status but continue to take cases, which will effectively give the Court an additional judge.
  • The nomination process for filling Judge Andrews' seat once he takes senior status next year is proceeding "expeditiously."
  • The Court remains very busy:
    • It's the 4th busiest court by weighted case volume, although two of the higher-weighted courts …
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Court Continues to Offer a Choice: Consent to Magistrate Judge or Be Referred to Visiting Judge

Andrew E. Russell, June 7, 2023
Visiting Judges Congestion

Doors
Jacob Culp, Unsplash

Over the last two weeks, Chief Judge Connolly issued orders in about 15 different groups of cases offering the choice between consenting to magistrate judges Burke (in some cases) or Fallon (in other cases), or being referred to a visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before June 13, 2023, the parties shall either (1) submit to the Clerk of Court an executed Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge, indicating their consent to have a United States Magistrate Judge conduct all proceedings in this case including trial, the entry of final judgment, and post-trial proceedings; or (2) file a joint letter indicating that …
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New Visiting Judge J. Nicholas Ranjan Adopts Judge Andrews's Procedures

Andrew E. Russell, June 2, 2023
Visiting Judges Congestion

Pittsburgh, PA, home of the Western District
Andrew E. Russell, displayed with permission

Last week, the District of Delaware began assigning patent cases to visiting judge J. Nicholas Ranjan of W.D. Pa. As far as I can tell, these are the first D. Del. cases to be assigned to Judge Ranjan.

Following the assignments, Judge Ranjan issued the following order in each case:

ORDER, regarding practices and procedures of Judge Ranjan. I was recently reassigned several patent cases in the District of Delaware. In order to provide some degree of procedural consistency, I intend to follow all local rules and standing orders of the District of Delaware, and I intend to utilize Judge Andrews forms and orders, until further notice. So counsel should comply with all …
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Reminder: File Too Many SJ Motions with Judge Noreika, and You May Have to Rank Them—And Likely Lose Some

Andrew E. Russell, May 26, 2023
Summary Judgment FRCP 56

Stick Figure Bonk

We talked early last year about how Judge Noreika praised Chief Judge Connolly SJ ranking procedures, and applied them in a case where the parties had filed 11 SJ motions.

As a reminder, under Chief Judge Connolly's procedures, the parties rank their SJ and Daubert motions. The Court addresses them in order, and if it denies one, it then denies the remainder.

Needless to say, it can lead to some significant strategizing prior to filing, where parties try to balance the importance of each motion with its likelihood of success.

This week, Judge Noreika did it again, and I thought it was a good time to remind everyone that this can happen. In VB Assets, LLC v. Amazon.com, Inc. …

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Another Reminder Not to Push the Court Past Its Breaking Point

Andrew E. Russell, April 21, 2023
Trial Practice Litigation

Words to live by when thinking about whether you need to go to the Court on your nth dispute this week.
Words to live by when thinking about whether you need to go to the Court on your nth dispute this week. George Pagan III, Unsplash

It's easy, especially at trial or in the lead-up to trial, to feel like you need to bring every dispute to the Court. The stakes in patent cases tend to be high, clients want to see progress, and sometimes every little dispute ends up feeling critical (particularly if the outcome impacts your trial plans).

Beyond that, sometimes more junior associates are tasked with handling disputes as trial approaches—and may be given the implicit authority to raise disputes, but not to resolve them. Shockingly, disputes can then multiply pretty quickly.

What happens when you start …

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How Much is Too Much? The Answer: Three Discovery Dispute Teleconferences in Two Months (Involving Nine Disputes)

Andrew E. Russell, March 24, 2023
Discovery Dispute Congestion

"From now on, your discovery disputes will be heard at the summit . . . " Alexander Milo, Unsplash

It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.

At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still …

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Judge Noreika: "The Court Will Not Act as a Negotiator to Whittle Down Overly Broad [Discovery] Requests."

Andrew E. Russell, March 17, 2023
Meet-and-Confer Discovery Dispute

Attorneys
AI-Generated, displayed with permission

Judge Norieka issued a notable oral order earlier this week in Neurocrine Biosciences, Inc. v. Lupin Limited, C.A. No. 21-1042-MN (D. Del.).

The context is not fully clear from the docket, but it looks like the parties contacted the Court to initiate a discovery dispute regarding the sufficiency of the plaintiff's document collection efforts. But, instead of issuing the typical order starting the process, Judge Noreika ordered the parties to meet-and-confer again and set some expectations as to how the Court will handle the dispute:

ORAL ORDER - The parties have requested a discovery dispute teleconference regarding Defendants' request for discovery into the search methods Plaintiff used to find responsive documents. IT IS HEREBY ORDERED that the parties shall meet and confer again. Thereafter, on or before 5:00 PM on 3/20/2023 [five days from the order], the parties shall provide the Court with the current version of the discovery requests, explaining what part or parts remain in dispute. The Court will not act as a negotiator to whittle down overly broad requests. Therefore, Defendants should propose requests of appropriate scope with the understanding that the Court may simply deny requests that are overly broad on their face.

It looks like the Court may be trying out a more efficient way to resolve disputes over discovery requests.

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Judge Wolson Implements New Summary Judgment Policy Requiring Parties to Serve Statement of Facts 28 Days in Advance

Andrew E. Russell, March 1, 2023
Summary Judgment SJ

A visiting judge
AI-Generated

Judge Wolson is a visiting judge with a number of patent cases here in Delaware. His procedures tend to differ a fair bit from Delaware judges in some areas (particularly those involving redactions sealing).

In February, he implemented an interesting new procedure for summary judgment motions. His new procedure requires parties to serve—but not file—their statement of fact in support of the motion 28 days in advance, so that the opposing party can respond on a fact-by-fact basis. The party serving the motion can then respond to that response. The resulting combined statement of facts is then filed with the brief.

This process is intended to result in a single statement of facts that includes the parties' opening, answering, and reply positions as to each fact, in that order and in one document for easy readability:

The result of this process will be a single, consolidated statement of facts that permits Judge Wolson to see each party’s position on each factual assertion in one place. For example, ...
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Court Gives Parties in 11 Patent Cases the Choice to Consent to Magistrate Judge Burke, or Get a Random Visiting Judge

Andrew E. Russell, Jan. 18, 2023
Visiting Judges Congestion

Roll the Dice
Leon-Pascal Janjic, Unsplash

Since 2021, Judge Connolly has occasionally issued orders asking parties to either consent to a magistrate judge or have their case re-assigned to a visiting judge. The parties in three out of five of that first round of cases consented, and we've seen several rounds of these orders since then.

The Court also offered parties a similar choice in the wake of the departure of Judge Stark, before Judge Williams was confirmed. I haven't seen hard numbers on this, but in May of last year we estimated that around 20% of those cases consented rather than waiting for the new district judge and risking re-assignment to a visiting judge.

These consent-or-visiting-judge referrals have continued through Judge …

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