A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: COVID-19

Delaware State Courts Revert to Phase 2 of Reopening Plan

Andrew E. Russell, Nov. 16, 2020
COVID-19 Trial Calendar

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Just as the District of Delaware restarts its jury trials, the Delaware state courts announced today that they are reverting back to Phase 2 of their reopening plan, after just moving to Phase 3 on October 5.

Under Phase 2, there are no jury trials, but the court houses will stay open, and grand jury proceedings, bench trials, and hearings will continue.

I haven't heard of any COVID-19 outbreaks in the jury trials in Delaware state courts, but Law360 today reported that there was a COVID-19-positive juror in a trial in the Eastern District of Texas, and that seven people involved in the trial have have now tested positive. …

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District of Delaware Holds First Jury Trial Since Start of Pandemic

Andrew E. Russell, Nov. 15, 2020
Jury Trials COVID-19

Chairs
Billy, Unsplash

On Monday morning, Chief Judge Stark is scheduled to hold the second District of Delaware jury trial since all jury proceedings were put on hold for the pandemic. The case is USA v. Aaron Davis, C.A No. 19-101-LPS, a criminal fraud and money laundering action filed August 2019.

The Court issued an order Friday making clear that the jury trial will go forward as planned:

ORAL ORDER: IT IS HEREBY ORDERED that the parties shall be present in Courtroom 6B at 9:00 AM on Monday, November 16, 2020. Ordered by Judge Leonard P. Stark on 11/13/2020. (etg) (Entered: 11/13/2020)

The Court has not yet posted public access information.

UPDATE 11-18-2020: This trial was continued shortly after …

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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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Rule 31 Depositions by Written Questions In Light of COVID-19 Travel Restrictions

Andrew E. Russell, Nov. 11, 2020
Depositions FRCP 31

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

Here's something you don't see every day.

After a discovery dispute about bringing a parties' European witnesses to the US for deposition during the pandemic, Judge Noreika ordered that depositions of a defendants' witnesses may initially take place by written questions under FRCP 31:

ORAL ORDER . . . IT IS HEREBY ORDERED that . . . Plaintiff may request a deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31. Any such deposition shall be subject to Local Rule 30.6, with the "commencement" of the written deposition being when Defendants' counsel receives the written questions and the "conclusion" of the deposition being when Defendants' counsel serves the response …
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Update on Upcoming D. Del. Trials [Updated]

Andrew E. Russell, Nov. 4, 2020
COVID-19 Trial Calendar

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

Last week I summarized upcoming District of Delaware jury trials.

With the COVID-19 numbers surging nation-wide, I wanted to keep an eye on these. All told, five of the six jury trials are still on. One trial was continued, and the parties in another filed a letter yesterday asking to delay the trial due to COVID-19 concerns.

Here are the updates:

  • November 3: Judge Noreika's remote bench trial was canceled after the parties settled.
  • November 16: Chief Judge Stark's criminal jury trial is still scheduled to go forward, although there is a status call set for 5pm tomorrow.
  • November 30: Chief Judge Stark continued the civil jury …
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D. Del. Schedules November 30 Patent Jury Trial, Imposes Restrictions

Andrew E. Russell, Oct. 19, 2020
Scheduling Jury Trials

Chief Judge Stark on Friday scheduled the first post-COVID-19 patent jury trial that I've seen, in Guardant Health, Inc. v. Foundation Medicine, Inc., C.A. No. 17-1616-LPS-CJB, D.I. 487 (D. Del. Oct. 16, 2020). (The potential Judge Noreika trial I mentioned recently is not going forward).

The Court had offered the November 30 date late last month. The defendant objected to it due to a conflict. The defendant also argued that the jury pool will not be representative, lacking older jurors, and that holding a trial would go against CDC guidance.

The Court was not persuaded. It did, however, set the following restrictions:

  • No live witnesses: The Court accepted a proposal that since not all witnesses can …
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Don't Get Your Hopes Up for a New District of Delaware Patent Jury Trial Date in 2020

Andrew E. Russell, Oct. 14, 2020
Scheduling Jury Trials

Unsurprisingly, in light of COVID-19, recent signs indicate that the Court is all booked up for this year, and probably for a large part of next year.

Here, for example, is a Judge Stark order from yesterday:

ORAL ORDER: Having discussed with the parties on repeated occasions whether and when to schedule this patent infringement case for a jury trial (see, e.g., D.I. 474, 549, 583, 590, 591, 593, 596, 605, 607, 608, 610-15) and having found (unfortunately) no date that is reasonable and available to all parties and to the Court, IT IS HEREBY ORDERED that trial in this matter is CONTINUED to a DATE TO BE DETERMINED, most likely in 2021 (and certainly NOT in 2020). IT …
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Judge Stark Addresses Jury/Judge Responsibilities on Willfulness, Pushes Trial Date

Jeff Castellano, Oct. 13, 2020
Willfulness COVID-19

Judge Stark recently adopted Judge Burke's recommendation that the Court deny a motion for summary judgment of no willful infringement, despite the defendant's objection that the key piece of authority underlying Judge Burke's decision issued after the summary judgment motion was filed. Judge Stark also pushed the November jury trial, but possibly by just a few weeks.

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District of Delaware Announces Socially-Distanced Jury Restart Guidelines, Jury Trial Procedures

Andrew E. Russell, Oct. 7, 2020
COVID-19

COVID-19
CDC / Alissa Eckert, MS; Dan Higgins, MAMS

The Court emphasized that these are just guidelines, not law, and may still be objected to. Here are some highlights:

Jury Selection

  • Various screening measures and a mask requirement
  • Potential jurors will be split into groups of 25, with no more than two groups in the courthouse at a time

Deliberations

  • Deliberations (and breaks) will be in the adjacent courtroom, with windows papered over and microphones disabled, rather than the usual jury room
  • No mask requirement in the adjacent courtroom if jurors are 6 feet apart
  • Jurors will get a computer with exhibits and a projector; one juror will operate

Courtroom Procedures

  • All individuals generally wear masks
  • Counsel "speaking from a socially-distanced …
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Judge Andrews Declines Request to Move January Trial Due to Coronavirus

Andrew E. Russell, Oct. 6, 2020
COVID-19

In M2M Solutions LLC, et al. v. Sierra Wireless Am. Inc., C.A. No. 14-1102-RGA (D. Del.), the parties submitted a joint letter last week asking Judge Andrews to delay their December 2020 PTC and January 2021 jury trial until "spring 2021" due to COVID-19.

Judge Andrews quickly declined, via an oral order issued on the same day:

[T]he Court is not now inclined to continue the trial to spring 2021. Circumstances could change for the better; travel restrictions could be lifted. And the pretrial conference, at least, can be done remotely. The parties may submit a letter after Thanksgiving revisiting the issue in light of then−existing circumstances.
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