A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Congestion

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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Lawyer Files Letter Asking Court to Rule on Their Motion; Court Immediately Grants Motion; Client Cheers

Andrew E. Russell, Jan. 13, 2023
Motion to Stay Congestion

Danger
Raúl Nájera, Unsplash

The District of Delaware is extremely busy. Sometimes clients and out-of-town counsel are surprised that they probably won't get rulings on their motions in the very-short-term. This often prompts questions like "Can we call the Court and ask them to rule on our motion?"—the answer to which is "no."

But in some instances parties really do need to alert the Court to a situation on the ground in the case that is impacted by a pending motion. The answer then is often to file a letter, which sometimes works.

We saw another successful letter this week. In Bataan Licensing LLC v. DentalEZ, Inc., C.A. No. 22-238-GBW (D. Del.), the defendant …

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Judge Andrews Taking Senior Status at the End of 2023—But Continuing with Full Caseload

Andrew E. Russell, Jan. 9, 2023
Congestion DED

Judge Andrews
Wikipemedia Commons

We're a little bit slow on the draw on this one. But for anyone who hasn't heard, the District of Delaware announced on Friday that Judge Andrews will take senior status in December 2023. The announcement notes that Judge Andrews will maintain a full caseload:

The United States District Court for the District of Delaware announces that Judge Andrews informed the President on January 5, 2023 that he intends to take senior status at the end of December 2023. Judge Andrews expects to continue with a full caseload once he becomes a Senior Judge.
Judge Andrews is an exemplary judge and colleague, and the Court is extremely grateful that he will continue to serve this institution and the public as a Senior Judge.

The District of Delaware hasn't had a judge on senior status for some time. To the extent that a new judge is appointed and Judge Andrews maintains a full caseload while on senior status, that's akin to a fifth judgeship for D. Del.—a 25% increase in the number of available judges.

The Law360 article on the announcement has some more details, including some very nice comments by Chief Judge Connolly.

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Two Thirds of Latest Round of Cases Consent to Magistrate Judge Jurisdiction Rather Than Getting an Unknown Visiting Judge

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

"If we don't consent, which visiting judge do you think we'll get?" Hush Naidoo Jade Photography, Unsplash

We've talked before about Chief Judge Connolly's orders that allow parties to choose to either consent to a specific magistrate judge or to have the case assigned to a visiting judge.

Last month, the Court issued those orders in six patent cases. All of the orders followed the same pattern as last time, giving the choice between a specific magistrate judge or an unknown visiting judge:

ORAL ORDER: It is HEREBY ORDERED that on or before November 1, 2022, 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 all the parties do not consent to a referral of this action to a Magistrate Judge. The letter should not indicate which party or parties did not consent. If all the parties consent, the case will be referred to Magistrate Judge Burke. Because of the Court's caseload, if the parties do not consent, the Court intends to assign the case to a visiting judge from another district. Ordered by Judge Colm F. Connolly on 10/18/2022.

These orders started last year, before Judge Stark's departure for the Federal Circuit. It makes sense that the Court is sticking with ...

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A New Visiting Judge for D. Del. Patent Cases: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA

Andrew E. Russell, Nov. 14, 2022
Visiting Judges Congestion

Philadelphia
Dan Mall, Unsplash

I noticed a new visiting judge here in the District of Delaware this month: Senior United States District Judge Joel H. Slomsky of the Eastern District of PA.

To my knowledge, Judge Slomsky has not previously served as a visiting judge in the District of Delaware, other than signing one stipulation on an emergency basis back in 2010. It looks like Judge Slomsky took on four patent cases this month.

Welcome, Judge Slomsky!

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Judge Stark's Federal Circuit Investiture Is Thursday at 3:00 P.M.: Here's Where to Watch

Andrew E. Russell, Oct. 12, 2022
Congestion DED

Judge Stark being sworn in by Chief Judge Kimberly A. Moore
Judge Stark being sworn in by Chief Judge Kimberly A. Moore U.S. Court of Appeals for the Federal Circuit

This isn't news for Delaware FBA members, since Delaware FBA president Jeremy Tigan helpfully sent around an e-mail yesterday.

But for anyone who isn't already aware, Judge Stark's investiture will take place on Thursday 10/13 at 3:00 P.M. ET. You can watch it live here. That link should be active about 15 minutes before the event. Congratulations again to Judge Stark!

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Cases Are Starting to Be Re-Assigned to Incoming Judge Williams!

Andrew E. Russell, Sept. 7, 2022
Congestion DED

Wilmington, <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Delaware'>DE</a>
Andrew Russell, CC BY 2.0

Today we started seeing cases re-assigned to incoming Judge Williams. So far, we've seen re-assignments in cases from Chief Judge Connolly and Judge Noreika, including in a case that is set for trial next month. I've only seen one of our firm's vacant judgeship case re-assigned so far, but I would expect many or all of those cases to go as well—we'll see.

Judge Williams doesn't yet have a listing on the District of Delaware website, but we'll keep an eye out for that too, and we'll most likely have a post about his procedures.

UPDATE: Judge Williams' page is now …

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