A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Scheduling

Changing the Court's Defaults in a Scheduling Order May Be Risky

Andrew E. Russell, Oct. 14, 2024
Scheduling Conference Scheduling Order

But it seems so pretty
AI-Generated, displayed with permission

Each of our judges in Delaware has one or more form scheduling orders that sets limits on things like the number of motions in limine (typically 3), pages limits for summary judgment and Daubert motions (typically 40/40/20 or 50/50/25), and discovery dispute procedures.

Here is a scenario I've seen a couple of times:

  • The parties agree to change the limits in the form scheduling order to give themselves more pages, more motions, etc.
  • The change is visually small and not particularly noticeable (e.g., "three" MILs becomes "five" MILs, "forty" pages becomes "eighty" pages, etc.).
  • The Court so-orders the undisputed proposed scheduling order.
  • When the time comes to actually file the extra MILs or extra-long briefs, …
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Judge Bryson Denies Stipulation That Sets Dispositive Motions Too Close to Trial

Andrew E. Russell, Sept. 24, 2024
Case Dispositive Motions Stipulation

Denied
AI-Generated, displayed with permission

It seems fairly well known that while parties can freely stipulate to most kinds of schedule adjustments in the District of Delaware, changing the dispositive motion deadline is a danger zone that might result in the denial of your stipulation—or worse, such as the loss of your trial date.

But people often do it anyway. Yesterday, visiting Judge Bryson denied a stipulation that would move the case dispositive motions deadline to April 25, 2025 for a trial starting July 14, 2025.

Assuming the parties use the briefing schedule under the local rules, the Court will not have a full set of papers until May 16, less than 2 months before the first day of trial. No …

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Court Rejects Multiple Stipulations Moving Back the Conclusion of Dispositive Motions Briefing

Andrew E. Russell, Aug. 7, 2024
Scheduling Case Dispositive Motions

Danger Do Not Enter
Raúl Nájera, Unsplash

It can be risky to stipulate to change the deadline for dispositive motions, particularly for the reply brief, because it cuts short the Court's time to resolve those motions.

We've talked about this before, including in our guide to stipulations. But I think it's worth noting again, given that it popped up twice within the past week.

In both instances, the parties stipulated to move the reply dispositive motion deadline, while keeping the pretrial conference deadline—thus shortening the Court's time to resolve case dispositive and Daubert motions.

Likewise in both instances, the Court said no, but gave the parties some options.

As to the first stip, Magistrate Judge Burke actually suggested an abbreviated summary …

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Court Rejects Parties' Joint Request to Defer Case Scheduling Until After the Markman Hearing and Claim Construction Order

Andrew E. Russell, Nov. 15, 2023
Litigation Scheduling Order

Not the hoped-for result.
Not the hoped-for result. Michael Jin, Unsplash

Sometimes it's nice to know what doesn't work.

In AlterWAN, Inc. v. Amazon.com, Inc., C.A. No. 19-1544-MN (D. Del.), the parties stipulated to a judgment of non-infringement after the Court construed certain terms of the patent, and then appealed to the Federal Circuit.

The Federal Circuit vacated the stipulated judgment because it found it was not specific enough, and remanded the case. See AlterWAN, Inc. v. Amazon.com, Inc., 63 F.4th 18, 23 (Fed. Cir. 2023) (“[W]e cannot ‘ascertain the basis for the judgment’ of non-infringement, . . . because the parties did not adequately explain how the claim construction rulings related to the accused systems.”).

On remand, the …

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That Just Sounds Like a Stipulation with Extra Steps

Emily DiBenedetto, May 22, 2023
Stipulation Scheduling

Alpine Forget-me-not. Myosotis alpestris (1925)
Alpine Forget-me-not. Myosotis alpestris (1925) Mary Morris Vaux Walcott

Stipulations to extend time are a popular, both as a topic on this blog and in how routinely they are filed. Usually, stipulations to extend time are granted without incident, so we highlight the outliers as reminders that sometimes there’s more to it than mere agreement between the parties.

Don’t forget! If you’re stipulating to extend the:

  1. Deadline for discovery completion, or
  2. Postponement of trial

You must include the reasons for the request in your stipulation or motion. And the local rules require you to include either a supporting affidavit by the requesting counsel’s client or a certification that counsel has sent a copy of the request to the client.

This latter requirement reminds me of pre-college: in which students who received sub-optimal test scores needed to get a parental signature to prove to the teacher that the parent had seen the score and reviewed the offending test.

The parties in The Trustees of the University of Pennsylvania v. Genentech, Inc., C.A. 22-145-MN-JLH demonstrated how to correct deficiencies. Earlier this month, Judge Noreika issued an oral order denying their prior ...

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Every Second Counts

Nathan R. Hoeschen, May 2, 2023
Scheduling

It's no secret that the Court is busy, and it's only getting busier. Time being such a limited resource, requests for special (expedited) treatment are particularly fraught.

AI-Generated, displayed with permission

An important codicil (legal words for 200 Alex (#notmyAlex)) to this rule is that, once you receive this special treatment, you really can't change your mind. This rule was brought into sparkling clarity in Taiho Pharmaceutical Co., Ltd. v. Eugia Pharma Specialities Ltd., C.A. No. 19-2309-CFC (D. Del. May 1, 2023) (Oral Order), which really speaks for itself:

Plaintiffs have filed a motion to extend by two weeks the deadline for their posttrial brief and findings of fact. During these proceedings, both sides insisted on quickly proceeding to a bench trial on the validity of the '284 patent, even though that patent does not expire until 2029. The Court accommodated the parties' request, and it has repeatedly noted the importance of the parties adhering to the Court's schedule given the Court's high caseload. Plaintiffs now seek to extend their posttrial briefing schedule by an additional two weeks because they have chosen to hire additional counsel. Plaintiffs have significantly burdened the Court's resources to date and proceeded to trial knowing that they had to abide by the Courts post trial schedule. Now therefore, Plaintiffs' motion is DENIED.

So there you go—if you're going to go fast, go fast.

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Heads Up: Check Your Calendars for Sept. 21-22 Deadlines in D. Del. The Court May Have Just Moved Them.

Andrew E. Russell, April 12, 2023
Bench and Bar DED

I'll fix that for you...
Sasun Bughdaryan, Unsplash

The Court issued an order today clearing all of our calendars for the District of Delaware's Bench and Bar, which is set for September 21-22, 2023.

The order says that it moves all filing and service deadlines to the following Monday:

WHEREAS, the Court having announced that it will host its biennial District of Delaware Bench and Bar Conference on September 21 and 22, 2023, and the
Court wishing to promote the participation of as many members of the Bar as possible;
IT IS HEREBY ORDERED that all members of the court - District, Magistrate, and Bankruptcy Judges - will, to the greatest extent possible, cancel and refrain from scheduling court proceedings and filing deadlines on …
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Stip Denied: Parties Not Permitted to Stay Pending Resolution of Motions

Andrew E. Russell, March 3, 2023
Stipulation Scheduling

Green Light
Pawel Czerwinski, Unsplash

Parties in D. Del. patent actions frequently stipulate to adjustments of the case schedule, and these typically go through without any issue. So it always catches my eye when a stipulated stay is denied.

In Zogenix, Inc. v. Apotex Inc., C.A. No. 21-1252-RGA (D. Del.), and two related actions, one of the defendants had moved to dismiss one of the asserted patents in a related action, and the plaintiff had moved to amend its complaint to assert additional patents and join additional parties. The motions were filed in September and November, 2022, and remain pending.

The parties in the three actions stipulated to consolidate the actions for the purposes of discovery, and to stay the consolidated action until resolution of the motions to dismiss and amend.

Judge Andrews denied the motion, ordering that the parties instead move forward as if the motions were resolved in the broadest way:

ORAL ORDER: The Stipulation to Consolidate and Stay Case . . . is DENIED. The Court is not willing to stay the cases. The discovery deadlines in the two earlier cases . . . will not be extended. The parties should proceed as though the motion for leave to amend . . . will be granted and the motion to dismiss . . . will be denied. Ordered by Judge Richard G. Andrews on 3/1/2023.

We've noted before that stipulations to stay the entire case can be iffy, and Judge Andrews has previously rejected an attempt ...

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Judge Williams' New Form Scheduling Order Adopts Chief Judge Connolly's Ranking Procedures for Summary Judgment Motions—But Not for Daubert Motions

Andrew E. Russell, Oct. 26, 2022
Scheduling Orders Scheduling Order

System Update
Clint Patterson, Unsplash

Judge Williams issued a new form scheduling order last week. Updating his previous orders, he primarily added text mirroring Judge Connolly's procedures that require parties to rank summary judgment motions (where if any motion is denied, lower-ranked motions will not be considered):

(d) Ranking of Summary Judgment Motions. Any party that files more than one summary judgment motion shall number each motion to indicate the order in which the party wishes the Court to review its pending motions. The first motion the party wishes the Court to consider shall be designated #1,the second motion shall be designated #2, and so on. The Court will review the party's summary judgment motions in the order designated by …
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Document Production Deadlines Set as a Percentage of Completion (50%, 75%)?

Andrew E. Russell, Aug. 28, 2022
Stipulation Scheduling Order

Percentages
Artem Beliaikin, Unsplash

This is a way of drafting scheduling order deadlines I haven't seen before. In Novarad Corp. v. Medivis, Inc., C.A. No. 21-1447-VAC-MPT (D. Del.), the parties initially agreed to a scheduling order that included a deadline for document production to be "substantially complete."

Many (maybe all) of the judges' form scheduling orders include a deadline for substantial completion of document production. Parties generally understand the substantial completion deadline to mean the production of enough documents that fact depositions can begin.

Exactly how many documents that is can be an occasional source of disagreement. There is not a lot of well-known precedent about exactly what proportion of documents must be produced before the substantial …

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