The District of Delaware's local rules are available on the court's website, but they don't tell the whole story—there are a number of critical rules and practices set forth in other documents that are not as obvious on the site.
These can really trip you up if you're not familiar with D. Del. practice.
This post is geared towards mainly towards out-of-town or in-house counsel. It covers the basics and then lays out where to find some of those other important rules if you have a …
Daubert motions are as tough as they are common. It seems every case spawns at least one on each side, and the vast majority are denied with the Court finding that any deficiencies in the expert's methodologies are merely grounds for exploration on cross-examination.
One type that consistently beats these odds (at least in Delaware) is directed to damages experts that attempt to use the damages figures from prior jury verdicts as starting points for a hypothetical negotiation.
Judge Andrews in particular has held a hard line on this issue as shown in his decision on Wednesday in Sprint Communications Company L.P. v. Charter Communications, Inc, C.A. No. 17-1734-RGA, D.I. 573 (D. Del. Mar. 16, 2021). …
We've written several posts about the Pennypack factors and how hard it can be to win a motion to strike in D. Del. The upshot is that it's often better to simply reach agreement on a curative remedy rather than spend time on full-blown motion practice.
Case in point: on Monday, Judge Burke denied a motion to strike a two-page supplemental expert declaration on a patentability issue. Applying the Pennypack factors, he concluded
that having to respond to the supplemental declaration (which, after all, relates to one discrete issue, and is only two pages long) would occasion some great prejudice to Defendants. The issue can be resolved by permitting Defendants to file a supplemental sur-rebuttal expert report on …
Objections to Reports and Recommendations are something like an appeal. The District Judge is tasked with addressing the alleged errors of the Magistrate Judge de novo only to the extent they are "properly objected to." Fed. R. Civ. P. 72(b)(3). Thus, it is the job of the parties to raise objections to an R&R in a procedurally proper way. If they fail to do so, the District Judge is hamstrung to an extent. This outcome was on display in a recent ruling by Judge Andrews, in which both sides failed to properly object to a portion of the Magistrate Judge's R&R, leaving a patent with "serious" validity problems alive (for now).
The Delaware Supreme Court recently announced their expectation that they can safely return to jury trials in June, noting the recent decline in COVID-19 cases. They also announced that the 2021 bar examination for will be administered remotely.
The District of Delaware, however, is still set to restart jury trials on April 5. But there have been a few changes to D. Del.'s April jury trial calendar since our last update:
Claim construction opinions tend to be highly fact-specific, so even though they can be critically important to the parties in a case, we don't always post about them on this blog.
Judge Andrews issued an interesting claim construction opinion today, however, which addressed indefiniteness due to a potential drafting error in a claim.
The opinion involved claim language for a mechanical device:
. . . wherein the . . . assembly comprises a housing comprising the syringe and the stirring motor . . .
Defendants argued indefiniteness in light of the dual use of "comprising," because a person of skill in the art cannot determine a …
Law360 published an article yesterday by Carrie Garrison about an "exciting shift in the legal world," after Justice Thomas used the parenthetical "(cleaned up)" in a SCOTUS opinion:
Under that doctrine as it existed in 1946, a judgment is “on the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the court.” Id., at 501–502 (cleaned up).
This parenthetical, as Ms. Garrison points out, was suggested in 2017 as an alternative to longer parentheticals like "(internal quotation marks omitted)" under Bluebook Rules 1.5 and 5.2.
This sounds like a great way to save some space, particularly in light of the ongoing adoption of word limits by the District of Delaware …
Depositions have been especially hard during the pandemic. Luckily, the quick proliferation of Zoom and its competitors have made it possible to take remote depositions that roughly approximate the experience of angrily objecting across a conference table.
International depositions, however, have remained problematic. In the past, witnesses could simply be shuffled from a country with hugely restrictive deposition procedures to a more friendly jurisdiction -- be it the Netherlands, the UK, a consulate, or even beautiful Delaware.
Travel restrictions and the closing of consular offices have made this a non-starter in many cases and so there has been a bit of a resurgence in proceedings under the Hague as parties struggle to get what discovery they …
The first part of this headline is no surprise. As long as a motion to amend is filed before the deadline in the scheduling order, it's very hard to lose. In fact, Judge Andrews didn't even issue a written opinion on this one (another plug for the importance of monitoring oral orders in D. Del.):
I do not see undue delay, and Defendant basically concedes that any prejudice can be pretty easily ameliorated. The Court is not concerned about the prospect of a five-day trial with seven patents from seven families. That scenario will never come to pass.
The surprising part is what happened next. After dismissing the defendant's concerns, Judge Andrews ordered the plaintiffs to narrow their …
Last week, Judge Stark denied a motion to dismiss and strike a counterclaim and affirmative defense of inequitable conduct in Diebold Nixdorf, Inc. v. Hyosung TNS, Inc., C.A. No. 19-1695-LPS. His ruling serves as a reminder that pleading a defense of inequitable conduct is not the same as proving that defense.
