Somewhere between the filing of the pretrial order and the pretrial conference, Judge Stark typically issues an order resolving pretrial disputes and allocating trial time. These orders - while usually short - provide a wealth of insight into his trial practices and preferences, and (often) his views on substantive evidentiary issues. They also serve to remind litigants of longstanding trial management practices (including those codified in his form pretrial order).
On Friday, Judge Stark issued a 3-page pretrial memorandum order in a set of consolidated Hatch-Waxman ("ANDA") actions, Silvergate Pharmaceuticals, Inc. v. Bionpharma, Inc. et al., C.A. Nos. 18-1962, 19-1067, 19-678. The order contained decisions on sealing the courtroom during the bench trial, obviousness proofs, disclosure of exhibits to be used on cross examination, and others.
Among the rulings:
- Exhibits may be used on cross-examination (even for non-impeachment), whether or not they are disclosed in the pretrial order. This is not a universal approach - often cross exhibits are required to be disclosed to the other side in advance unless used only for impeachment.
- Defendants are permitted to use prior art references not identified in the PTO to establish background or motivation to combine, but may not use them for the central obviousness proof.
- The Court will consider sealing the courtroom "for limited times provided adequate notice is given" of the request, and "a showing consistent with governing law is made." This demonstrates that parties must do more than simply request sealing, and will likely be expected to show actual proof of harm that outweighs the strong presumption of public access.
The order also reinforced a number of the Judge's usual trial management practices (some of which are addressed by his form pretrial order):
- The Court will permit rebuttal and plaintiff may have sur-rebuttal if it has time remaining. This is not always the case, but Judge Stark typically gives the parties latitude to decide how to use their time (but see next point).
- The Court "WILL (not 'may') terminate a party's presentation if that party has used all of its allotted trial time." (emphasis original). This is true.
- Argument about admissibility of trial exhibits occurs at the beginning of the trial day in which the exhibits are to be used. Failure to comply "will result in wavier of the objection."
- The Court will confer with the parties at the end of trial about the schedule and scope of post-trial briefing. The parties usually have some control over this schedule, within reason, and in ANDA cases it may hinge on the timing remaining in the 30-month stay.
- The Court gave each side 12-14 hours of trial time, spread over 5 consecutive trial days (February 1-5, 2021). This is about typical.
While nothing here is groundbreaking, these orders are critical to understanding how the Chief Judge runs his courtroom during trial.
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