We've written before about the risks of a deponent consulting with counsel during a deposition. This week, visiting Judge Wolson ordered a deposition reopened after counsel did just that:
AND NOW, this 27th day of November, 2023, upon consideration of Stragent’s Motion For Sanctions Against VCUSA Pursuant To Fed. R. Civ. P. Rule 30(d)(2) For VCUSA’s Violation Of Local Rule 30.6 And Established Law (D.I. 100), and for the reasons set forth on the record during a hearing with the Parties, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED, to the extent Stragent seeks to reopen the deposition of [the deponent] …
The parties in Stragent, LLC v. Volvo Car USA, LLC, C.A. No. 22-293-JDW (D. Del.) filed a joint appendix of exhibits alongside some supplemental SJ briefing. The defendant filed a motion to seal its SJ brief, which apparently discussed internal software specifications.
The Court granted the motion to seal the SJ brief, but criticized the brief in strong terms:
Volvo seeks to file its supplemental summary judgment brief under seal, but it’s supporting brief doesn’t say much. For example, while Volvo makes generic references to “proprietary commercial, financial and business information” and …
Ouch. This week in MED-EL Elektromedizinische Geräte Ges.m.b.H. v. Advanced Bionics LLC, C.A. No. 18-1530-JDW (D. Del. Oct. 30, 2023), Judge Wolson addressed a motion in limine to exclude testimony from both of the accused infringer's witnesses on their prior use defense.
The accused infringer didn't offer expert testimony at all on invalidity, according to the briefing. D.I. 399 at 3. Instead, it asserted a prior use defense in its contentions, presumably intending get it in through fact witness testimony.
The patentee first moved in limine to preclude the defense due to a lack of expert testimony. But the Court held that a party can present an invalidity defense without it—and compared the motion to an improper SJ motion:
The first part of AB’s Motion In Limine #1 is a summary judgment motion in disguise. MED-EL asserts invalidity in this case. If AB had a basis to argue that the absence of expert testimony dooms that claim, then it should have moved for summary judgment on the issue. It didn’t, and it can’t use an in limine motion to dispose of MED-EL’s claim. If AB believes that the lack of expert testimony means that MED-EL cannot meet its burden, then AB can seek relief under Rule 50 at the close of MED-EL’s case at trial.
(We've talked before about the risks of bringing what should be an SJ motion as a MIL.)
In other words, offering no expert testimony could be OK. The accused infringer, however, also failed to ...
An attorney's view after many a deposition—if you're lucky enough to catch a flight back that night.Eva Darron, Unsplash
This On Friday, Judge Wolson addressed—and rejected—an effort by an ANDA defendant to limit deposition discovery on the basis that discovery is, in its view, just not that important in an ANDA action. As set they put it:
This is an ANDA case. Black letter law holds that the infringement issues in an ANDA case are controlled by the ANDA itself. . . . Months ago, Defendants produced the ANDA and ANDA product samples from which the relevant infringement analysis must be derived. Plaintiff has now noticed the deposition of both Defendants and seven individuals. But the information that …
Judge Wolson of the Eastern District of Pennsylvania has taken a number of patent cases as a visiting judge in the District of Delaware over the past few years, including at least one that has gone to trial recently.
One aspect of practice before Judge Wolson that may be unexpected for regular Delaware practitioners is how he handles sealing of documents.
Sealing Materials Is Typically Easy in the District of Delaware (Maybe Too Easy)
Normally, in Delaware, parties are used to just filing things under seal, and then filing a redacted version seven days later. No motion to seal is generally required and, depending on the judge, there is little risk that a redacted version will …
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