A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Sanctions

Judge Andrews Gives Parties Homework to Discourage Discovery Disputes

Nathan R. Hoeschen, Dec. 3, 2020
Discovery Dispute Sanctions

Excellent, now set it on fire . . . the hoop
Excellent, now set it on fire . . . the hoop Border Collie jumping through the hoop at NZDAC Gore New Zealand, Andrea Lightfoot, Unsplash

In Delaware, there are a few hoops to jump through if you want to bring a discovery dispute before the Court. Local Rule 7.1.1 is the most basic, and requires the parties to make "reasonable efforts" to resolve their disputes, including verbal communications between opposing Delaware Counsel.

Next, each Judge has their particular procedures for bringing the dispute, either requiring a joint phone call to chambers (Judges Connolly, Noreika, and Andrews) or a joint letter outlining the issues and confirming that the parties have met and conferred (Judge Stark). In either case, the parties …

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We Three Agree — Me, Myself, and I (Or: Court Strikes Expert's Opinion That Secretly Relied On His Own Anonymous Writing)

Emily DiBenedetto, Nov. 19, 2020
Rule 37 Sanctions

Mirrored
Mirrored Alex Iby, Unsplash

Last month, Judge Burke struck "a substantial portion" of an expert's infringement report after the expert relied on his own anonymous peer review to prove infringement, without disclosing that he had been the author.

The truth did not come out until the deposition.

The Expert Secretly Relied On His Own Prior Anonymous Writing

Plaintiffs in this action allege infringement only via the doctrine of equivalents, arguing that the differences between the accused drug and the claimed drug are insubstantial. Defendant argues that the differences are substantial, relying in part on a 2016 article showing that the accused drug performs significantly better than the claimed drug.

Plaintiffs' expert reports criticized the 2016 article based on two …

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Court Orders "Unusual" Preliminary 30(b)(6) Deposition, Suggests Sanctions After Defendant Potentially "Hiding the Ball" on Damages

Andrew E. Russell, Oct. 18, 2020
Damages Sua Sponte

Google tells me
Google tells me "hide the ball" is a football thing. Dave Adamson, Unsplash

In Guest Tek Interactive Entertainment, Ltd. v. Nomadix, Inc., C.A. No. 18-1394-RGA (D. Del.), plaintiff sent RFPs for various financial documents, but defendant produced only a single page profit and loss statement for each year, claiming no more was available.

Plaintiff brought a discovery dispute and asked Judge Andrews to order production of any further documents in defendant's possession.

Judge Andrews declined. Instead, he sua sponte suggested that the parties resolve this via a 30(b)(6) deposition about the kinds of financial information that defendant keeps:

[D]o a 30(b)(6) deposition and find out if there are any other documents. And you know, …
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Substantial Completion Is Really More of a State of Mind

Nathan R. Hoeschen, Oct. 8, 2020
Substantial Completion Sanctions

Typical small production of recent unimportant documents served after substantial completion deadline
Typical small production of recent unimportant documents served after substantial completion deadline Can you find the book you need?, Carles Rabada, Unsplash

"Substantial completion of document production" is not exactly a bright line.

Is it more than half?

More than 90%?

At least in Delaware, cases interpreting the issue are light on the ground. Usually, when presented with a steaming pile of documents after the substantial completion deadline, the parties will work out some modest schedule extension without any court intervention. This is probably for the best, but it means that the parties are usually working from a blank slate when negotiating the necessity and length of any extension.

Luckily for us, Judge Burke issued an Oral Order …

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Additional Sanctions In My Favorite Delaware Case

Nathan R. Hoeschen, Oct. 1, 2020
Sanctions

The Court (top center, riding an eagle) ordering additional sanctions
The Court (top center, riding an eagle) ordering additional sanctions Jupiter Fighting the Giants, Jacopo Zucchi

Following on Yesterday's post where we noted the odd and pleasing use of "Kludgy," I would like to use today's post to bring attention to another recent Delaware opinion which contains what I can only assume is the only use of the phrase "[y]ou can work with legal but at the end you will have your face burried [sic, obviously] in s***!" in a legal opinion.

The case is Citrix Systems, Inc. v. Workspot, Inc., C.A. No. 18-588, D.I. 411 (D. Del. Sept. 25, 2020), and it is a true ray of light in these dark days.

The opinion describes …

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