A Blog About Intellectual Property Litigation and the District of Delaware


Entries for date: 2020

Judge Andrews Is Allowing Only Two Attorneys Per Side for In-Person Trials

Andrew E. Russell, Sept. 4, 2020
COVID-19

Judge Andrews noted this week that he is currently allowing only two attorneys per side for in-person bench trials, including for a trial scheduled to start on Sept. 14th, and that he "may insist on this practice for some time." Sprint Communications Co., L.P. v. Charter Communications, Inc., C.A. No. 17-1734-RGA, D.I. 545 at 2 (D. Del. September 2, 2020).

He also said that he "anticipate[s] a jury could be assembled for an October 5 trial," but did not want the first post-COVID-19 civil jury trial to be one that involves primarily out-of-town attorneys and personnel.

The trial at issue was ultimately delayed for other reasons, including the fact that there are still nine pending motions, and …

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Judge Noreika Sets Procedure for In-Person Bench Trial Next Month

Nathan R. Hoeschen, Sept. 3, 2020
Trial COVID-19

Expert Witness Examines Evidence at Upcoming Bench Trial
Expert Witness Examines Evidence at Upcoming Bench Trial Ani Kolleshi, Unsplash

As the court moves closer and closer to resuming normal operations, Judge Noreika has released a new order describing the procedures for her first COVID-19 bench trial with live attorneys (although still remote witnesses).

TriMed, Inc. v. Arthrex, Inc., C.A. No 18-666-MN, was originally slated for a jury trial on September 14, 2020, but was converted to a bench trial on the same dates following a teleconference on July 30.

Other than the lack of in-person witnesses, the trial appears to be remarkably similar to a bench trial in the before-times, with the only major concessions to the pandemic being required masks, the use of electronic witness …

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Judge Burke: Don't Just Say You're Burdened—Prove It

David M. Fry, Sept. 2, 2020
Discovery Dispute

Burden
Simon Migaj, Unsplash

Yesterday, Judge Burke ordered a plaintiff to collect documents from an additional custodian beyond the limit agreed to by the parties. But he also gave the plaintiff a road map for how they might have won with a little extra effort.

Judge Burke acknowledged that "the parties are not large companies, and that cost and burden were a factor in the parties' agreement to [a] seven-custodian limit in the first place."

But Plaintiff could have provided the Court with a record ... to help the Court conclude that the collection, search, review and production of [the custodian's] documents would be unduly burdensome or costly, or that it would be disproportionate to either the amount in controversy or …
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District of Delaware Extends COVID-19 Ban on Jury Trials to Mid-September

Andrew E. Russell, Sept. 1, 2020
COVID-19

The District of Delaware's previous standing order banning jury trials would have expired today, but the Court issued a new order extending Phase 1 (no jury trials) through September 14.

The Court is currently holding bench trials but not jury trials.

The previous extension moved the expiration date back six weeks, but this extension only moves the date back by only two weeks.

This shorter extension may indicate that the Court is gearing up to start dealing with the backlog of trials, although at least one judge indicated as recently as two weeks ago that he thought September jury trials were unlikely.

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Judge Stark Declines to Construe Non-Claim Term

Jeff Castellano, Sept. 1, 2020
Claim Construction

During the claim construction process, parties identify and offer constructions for claim terms. It is not uncommon for parties to dispute the meaning of words within those constructions but which do not appear in the claims themselves, leading to further refinement of positions during subsequent claim construction exchanges and briefing. Parties may be tempted to ask the Court to separately resolve these "construction within a construction" disputes. Judge Stark recently addressed such a request.

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Court Unseals Transcript of "Whistleblower" Letter that Derailed Xcoal Trial

Andrew E. Russell, Aug. 31, 2020
Sealing Litigation

Last week I wrote about the Xcoal breach-of-contract bench trial, which was adjourned after opening statements due to an "anonymous letter" discussed at a sidebar.

The Court has now unsealed the transcript of that sidebar, which includes the contents of the "anonymous letter" (as read into the record).

It turns out that the letter, signed "Xcoal whistleblower" and sent to defendants' counsel, alleges that plaintiff Xcoal's founder had planned to "cause a default" on the contract at issue, so that the company could collect on a $10 million guarantee that was part of the contract.

It alleges that he planned "to cause default by delayed coal shipments, withhold payments, and extract penalties from [defendant] Bluestone."

The contract involved lab …

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Judge Burke Sets Forth Views on Impermissible Discovery in Trade Secret Actions

Andrew E. Russell, Aug. 28, 2020
Discovery

Restricted Data Notice
"Restricted Data" stamp, RestrictedData, CC BY 2.0

In another part of the opinion mentioned earlier today, Judge Burke set forth his views on the scope of discovery in a trade secret action—an issue that comes up a lot, along with the related issue of the disclosure of the alleged trade secrets:

As to what is not relevant trade secret discovery: what [Plaintiff] is not entitled to do is to set out a claim in Count IX for trade secret misappropriation—i.e., a claim involving a certain set of alleged facts, occurring in a certain alleged time frame, involving a certain referenced set of persons and a certain type of purported misconduct—and then say to [Defendant], “Now that we have …
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The Court: Broad, General Interrogatories Merit Only Broad, General Answers

Andrew E. Russell, Aug. 28, 2020
Interrogatories Discovery

Judge Burke yesterday unsealed a lengthy opinion addressing a range of discovery disputes in a pending trade secret litigation.

In one instance, plaintiff sought to force a further response to a broad interrogatory, and complained that Defendant's broad answer omitted important time periods. The interrogatory asked:

[D]escribe in detail the stage of R&D, design, documentation, clinical work, marketing and/or sales of the [relevant product] at the time [Defendant] or anyone on behalf of [Defendant] was in first contact with any Former [Plaintiff] Employee . . . .

Judge Burke denied the request, noting that the time periods Plaintiff complained about were from before the alleged trade secret theft, and therefore it was not clear why they were relevant. He also …

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Eleven Terms Enter, Ten Terms Leave

Nathan R. Hoeschen, Aug. 27, 2020
10 Terms Claim Narrowing

Claim Construction Meet and Confer Ends in the Usual Way
Claim Construction Meet and Confer Ends in the Usual Way Ein Gedenkbuch an das glorreiche Jahr 1866 in Wort und Bild, British Library, Unsplash

Last Friday, Judge Noreika ordered the parties in two separate actions to submit revised joint claim charts "identifying no more than a total of ten (10) terms to be argued at the [claim construction] hearing."

The Ongoing Struggle to Limit Terms

This represents a bit of an escalation in the Court's struggle to reduce the number of terms it construes, largely led by our newest Judges, Noreika and Connolly. Last year, Judge Noreika begin issuing her "now-standard post-briefing order directing the parties to meet and confer in an attempt to narrow issues prior to the …

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Xcoal Trial Derailed by "Anonymous Letter," like "Something Out of a John Grisham Novel"

Andrew E. Russell, Aug. 26, 2020
Trial Litigation

Artist's rendering of the
Brando Makes Branding, Unsplash

The trial in Xcoal Energy & Resources v. Bluestone Energy Sales Corp., C.A No. 18-819-LPS (D. Del.) was adjourned this morning following receipt by the parties of an "anonymous letter." The trial had started yesterday, after the Court previously overruled Xcoal's due process objections to a remote trial.

All of the discussion of the letter was at sidebar, so its contents are not yet public. But it must be something interesting!

The parties had asked for a sidebar immediately after opening statements yesterday. Counsel mentioned that the situation is like "something out of a John Grisham novel."

At the sidebar, they read the "anonymous letter" into the record, and both parties …

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