A Blog About Intellectual Property Litigation and the District of Delaware


MPT
The Honorable Mary Pat Thynge

Contention Amendment Denied Because Good Cause Is Measured from the Outset of the Litigation

Andrew E. Russell, Feb. 13, 2023
Good Cause FRCP 16

Early case:
Early case: "No, we're not amending, why are you bugging us?" Late case: "Oh no! There was a deadline to amend?" Eric Rothermel, Unsplash

Rule 16 says that a schedule "may be modified only for good cause and with the judge’s consent." This rule comes up any time a party wants to do something after a deadline set in the scheduling order, which is one of the more common litigation issues.

Parties will often, for example, let the deadline to amend the pleadings pass by, only to later realize that they want to assert an inequitable conduct defense (defendants) or wrap in a related entity (plaintiffs).

Good cause requires diligence, and in practice parties often frame the diligence discussion …

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Another Order to Produce Litigation Funding Discovery—This Time Against What Looks Like a Practicing Entity

Andrew E. Russell, Dec. 5, 2022
Litigation Funding Discovery Dispute

Money
Pepi Stojanovski, Unsplash

Last week, Chief Magistrate Judge Thynge issued an opinion addressing a motion by accused infringers to compel the patentee to produce litigation funding discovery and opinion letters relating to the patents-in-suit.

While it involves litigation funding discovery, this case is a bit different from the recent Mavexar hearings. Here, the patentee is MHL Custom, Inc. who, it appears, is a practicing company and not an NPE. Beyond that, the case is still active (unlike some of the Mavexar cases) and the discovery is sought by the defendant, not the Court itself. In other words, this is a more typical ruling.

But the opinion is still notable. The Court granted the accused infringers' motion for three categories …

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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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Recent Denials of Early-Case Extensions in D. Del.

Andrew E. Russell, June 6, 2022
Stipulation FRCP 16

Do Not Enter Wrong Way
Tim Mossholder, Unsplash

Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:

ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)

Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).

I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:

ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...
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Disputing Your Own Facts

Nathan R. Hoeschen, Nov. 11, 2021
Summary Judgment

Chapter 8 of my personal favorite writing guide, Richard Wydick's Plain English for Lawyers, counsels against the use of elegant variation. For the uninitiated, elegant variation is the practice of using different words to express the same concept in order to spice up the writing. This tends to make things more confusing, especially in technical arenas. As an avowed logophile, it's one of the book's lessons that I struggle with the most.

I bring it up today, because I can't help but wonder if elegant variation played a role in the denial of a motion for summary judgment in Sprint Communications Company L.P. v. Charter Communications, Inc., C.A. No. 18-2033-RGA-MPT. Charter had moved for summary judgment of non-infringement, citing …

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Court Continues to Push Back on Sealing

Jeff Castellano, Oct. 20, 2020
Sealing Redactions

Consistent with a recent trend in the District, Judge Thynge recently ordered parties to justify the continued sealing of a proposed amended complaint—even though the plaintiff had followed the ordinary sealing procedures and had submitted a redacted version of its motion to amend, including redactions to the proposed amended pleading.

Shortly after she issued her R&R denying plaintiff's motion to amend, Judge Thynge put the following notice on the docket:

ORAL ORDER: Although the Motion to Amend the Complaint was filed under seal, within ten (10) days of the docketing of the Report and Recommendation at DI 266, counsel shall file an explanation, limited to two (2) pages, as to why the Amended Complaint should remain under seal. Ordered …
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