Given that we've devoted a good deal of coverage to redaction requests in the last few months, I thought it might be useful to present a brief primer on the procedure for actually requesting redactions to a transcript in the District of Delaware.
This procedure cannot be found in either either the local rules or the Court's CM/ECF procedures. Instead, it comes from the Court's "Policy on the Electronic Availability of Transcripts of Court Proceedings."
Under this policy the process begins when the court reporter dockets the transcript, which looks like this:
Nate Hoeschen
After that, things get a bit murky.
So I Have 21 Days to Request Redactions?
First off, that 21-day deadline ("Redaction Request Due 3/22") is actually …
It's a tough scenario: you think your opponent might have assigned away their patent rights, but you aren't exactly sure. And the only way you could know for sure is with information you don't have.
Most of the time in D. Del., disputes like this are addressed in a hearing transcript or an oral order. They don't make headlines, and they never hit Lexis or Westlaw, but they often provide helpful guidance for the future.
Yesterday, Judge Burke issued an oral order denying a request to compel a plaintiff to turn over its litigation funding documents. The defendants knew that the plaintiff had third-party litigation funding (and suspected that there might have been some assignment of …
Yesterday, Judge Noreika denied an early Section 101 challenge to two patents-in-suit, in light of a factual dispute regarding unconventionality of certain aspects of the claimed invention.
Although plaintiff managed to survive the § 101 motion, it failed to meet the relatively un-demanding standard for pleading direct infringement – a test that would have been satisfied if the plaintiff had simply "identified the . . . accused products and alleged that the accused products met 'each and every element of at least one claim' of the asserted patents, either literally or equivalently." ...
As we previously mentioned, the Court has suspended all non-emergency jury trials until April 5, 2021, and has stated that, at least initially, it will permit only one jury trial to proceed at a time.
The Court tried repeatedly to re-start jury trials in November and continuing through early February—and got so far as jury selection—but ultimately all of the cases scheduled for trial either resolved or were delayed, mostly due to coronavirus concerns among the parties. At this point, the Court has recognized that, once jury trials restart, the trial calendar is looking extremely congested.
The Court Has Not Canceled All April Jury Trials (Yet)
The practice in Delaware has long been that calls to chambers are generally only appropriate in a relatively narrow range of circumstances, and "please decide my motion immediately" is not one of them.
It looks like one plaintiff's counsel may have learned this this hard way on Wednesday when they filed a TRO seeking to enforce an arbitration clause in an employment agreement, and then immediately called the court to urge that it receive immediate attention. Here is the Court's response, issued the same day as …
This week brought to light yet another unexpected side effect of COVID-19 -- it's now harder to win a motion to bifurcate.
This interesting tidbit came to light in Judge Hall's opinion in Evertz Microsystems Ltd. v. Lawo Inc., C.A. No. 19-302, D.I. 259 (D. Del. Feb. 23, 2021). The defendant there moved to bifurcate the infringement and damages cases into separate trials near the close of fact discovery. In denying the motion, Judge Hall noted that the prejudice to the plaintiff, and strain on the Court, of holding two separate trials was greater than it would normally be because it was unlikely the second trial could be scheduled for years:
As the parties both know, this Court currently has an extremely congested docket. It would be difficult to schedule an additional trial in this action; thus, Evertz would likely have to wait additional years to have full resolution of its claims.
Id. at 3.
Its also worth noting that Judge Hall called out the "fairly litigious" nature of the case, with the parties "raising numerous discovery disputes before the Court" leading to concerns that "bifurcating and staying the issue of damages will result in (1) duplicate discovery requests and disputes as those already resolved and (2) new disputes over what is appropriately part of the liability phase versus the damages phase" that would further tax the Court." ...
Case in point: on Friday, Judge Andrews granted a motion to strikeDOE theories asserted for the first time in an opening expert report. The plaintiff offered a number of excuses for disclosing the theories when it did—"it was only able to collect evidence to support its new DOE theories" after a COVID-delayed source code review, it lacked supporting evidence until a technical deposition in November 2020, and so on.
Judge Andrews not only rejected these excuses, but took it a step further—coming very close to finding that the plaintiff acted in …
In the vast majority of patent case in Delaware, the parties are required to serve initial patent disclosures in the form of infringement and invalidity contentions (separate from the contentions they might otherwise serve as part of written discovery). These initial contentions set the stage for fact discovery, claim construction, expert reports, and (in some cases) settlement.
Initial patent disclosures were formalized in this District to some degree by the Court's creation of the Default Standard for Discovery nearly a decade ago. The Default Standard established a staged set of initial disclosures that was eventually adopted by most of the Judges here.
Continuing in the vein of last week's discussion of claim narrowing, Judge Andrews issued an interesting opinion on Friday discussing the number of invalidity arguments a defendant was allowed to present at trial.
Although we still occasionally see orders in the district limiting the number of prior art references a defendant is allowed to assert, it has become increasingly common in recent years to see the Court limit the number of prior art arguments or combinations or defenses an accused infringer can assert -- either instead of, or in addition to, a set number of references.
The question of how to count "arguments" has generated a fair amount of opinions in the district, with slightly varying results. Judge Burke gave …
Moving to transfer a case out of Delaware is tough. This is doubly true when Delaware is the Plaintiff's "Home Turf," in which case its choice of forum is entitled to "paramount consideration." See Intellectual Ventures I LLC v. Altera Corp, 842 F. Supp. 2d 744, 754 (D. Del. 2015).
We've previously covered the split in district on the question of whether Delaware is necessarily the home turf of every entity incorporated here, or if a plaintiff needs more than a P.O. box and a certificate on file with the Secretary of State for its choice of venue to warrant "paramount consideration."
As he noted in FG SRC LLC v. Xilinx, Inc., C.A. No. 20-601-LPS, D.I. 34 (D. Del. Feb. 10, 2021), Judge Stark "believe[s] that an entity's state of incorporation is part of its home turf" regardless of any other connections it may or may not have with the district. See id. at 6-7.
The interesting bit about the FG decision is the Judge Stark's analysis was unaffected by the fact that the Plaintiff had admittedly chosen to assert the same patents against another Delaware entity in a different district (W.D. Tex.) just one week prior. See id. n.3. Although defendant pointed out that this pretty strongly suggested that the plaintiffs interest in litigating this particular suit in Delaware was more a product of strategy than a commitment to litigating in its beloved state of incorporation, Judge Stark was unmoved and proceeded to deny the motion to transfer.
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
