A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Scheduling Orders

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

Markman briefing is often especially dense and time-consuming to absorb, and so traditionally each of the judges has had their own special procedures for Markman briefing set forth in their respective form scheduling orders.

With the additions of Judge Connolly and Noreika to the Delaware bench, however, a consensus formed around Judge Andrews' procedures—with four rounds of briefs that are served but not filed and then incorporated into a joint brief for the Court's review. Judge Stark is now the lone outcast, with his preference for 2 rounds of simultaneous briefing filed with the Court, a procedure that has been enshrined …

Le Duel a l'Épée et au Poignard (The Duel with the Sword and Dagger)
Le Duel a l'Épée et au Poignard (The Duel with the Sword and Dagger), Jacques Callot

After we talked last week about an unsuccessful effort to bypass the Court's discovery dispute procedures, I thought it might be interesting to talk about what those procedures are, for people who don't practice here day in and day out.

A discovery dispute is a special procedure that allows the parties to receive a (relatively) quick hearing to resolve issues that arise during discovery. Bringing a discovery dispute is the only way the Court allows the parties to address these kinds of discovery issues in a typical District of Delaware case (including both patent and non-patent cases).

Is This in the Rules or What?

Discovery disputes are not mentioned in the local rules, but all of the judges have discovery dispute procedures in their form scheduling orders. ...

The judges' form scheduling orders in D. Del. require deadlines for motions to amend, tracking FRCP 16(b)(3)(a), which says scheduling orders must limit the time to amend pleadings.

In an oral order on Friday, Judge Burke granted a motion to amend an answer that was filed on the day of the deadline set in the scheduling order.

He described how difficult it would be for a party to argue that a motion to amend was untimely when it was filed before the agreed-upon deadline:

It would be the unusual case where a Court had previously determined (at the parties' request) that amendment could be allowed by a certain date without causing harm to the case schedule, and yet …