Hot on the heels of yesterday's post about Chief Judge Connolly's preferred style of Jury instructions, Judge Noreika just issued an Oral Order outlining her own preferences for the format and content of final jury instructions.
The parties in Aqua Connect, Inc. et al v. TeamViewer US, LLC, C.A. No. 18-1572-MN submitted their proposed final jury instructions to the Court about 2 weeks ago, which included several disputes. Yesterday Judge Noreika issued the Oral Order below requiring them to resubmit the proposal with several modifications:
The Court has reviewed the proposed final jury instructions and finds that submission does not conform with the Courts practices. Moreover, it appears as though the parties have not made an earnest effort to reduce the number of disputes. For example, although each side submits its own proposed instruction on inducement (D.I. 243 § 4), there are commonalities and, indeed, shared language between the competing instructions. Additionally, the scope of the case has changed since the parties submitted their proposed final instructions e.g., patent exhaustion is no longer at issue in this case. No later than 9AM on August 10, 2022, the parties shall meet and confer and submit a revised joint set of final jury instructions. Local counsel and lead trial counsel for both sides (i.e., the person(s) trying the case) shall participate in good faith discussions in person or by phone in an attempt to narrow the disputes that the Court needs to address. The proposed instructions shall include an instruction for each issue and indicate which parts of each instructions are joint, proposed by Plaintiffs or proposed by Defendants. The Court points the parties to the Final Jury Instructions in Complete Genomics, Inc. v. Illumina, Inc., C.A. No. 19-970 (MN) for guidance, particularly because the Court in that case removed final instructions that were repetitive over the preliminary instructions.
Id., D.I. 261 (D. Del. Aug 8, 2022).
Key Takeaways On Format
The main issue with the form appeared to be the way the parties set forth their competing proposals for the disputed terms. For some terms, they included a single disputed term and then bracketed in the disputed portions, for example:
5.1 INVALIDITY—BURDEN OF PROOF
I will now instruct you on the rules you must follow in deciding whether or not TeamViewer has proven that the Asserted Claims are invalid. To prove that any claim of a patent is invalid, TeamViewer must persuade you by clear and convincing evidence that the claim is invalid. [Plaintiffs’ Proposal: When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.]
Like infringement, you must determine whether each asserted claim is invalid on a claim-by-claim basis.
Id., D.I. 243 at 32.
Reading the order, this appears to be the format Judge Noreika prefers.
In other sections, such as the instruction on inducement noted in the Order, the parties submitted totally separate instructions labeled "Plaintiffs' Proposed Instruction" and "Defendants' Proposed Instruction." Id. at 21-22. My advice, dear reader, is not to do it that way going forward.
Substantive Notes
In addition, Judge Noreika also drew the parties attention to the instructions in Complete Genomics, Inc. v. Illumina, Inc., C.A. No. 19-970 (MN), noting that "the Court in that case removed final instructions that were repetitive over the preliminary instructions."
Indeed, a quick review of the Docket shows that the parties submitted at least three versions of their proposed instructions, See, e.g., Complete Genomics, Inc. v. Illumina, Inc., C.A. No. 19-970 (MN), D.I. Nos. 368, 389, 396. After receiving the parties second revised proposal, Judge Noreika presented her own proposed instructions which, in addition to ruling on the parties' various disputes, crossed out numerous general instructions that the parties had agreed to. Id., D.I. 397.
The main casualties of the redline were the numerous "general" instructions which define evidence, discuss credibility and the like. Id. Given yesterdays' Aqua Connect Order, it appears that the principle behind these edits was that these instructions were "repetitive over the preliminary instructions."
The complete instructions—both the version ultimately accepted and the final proposal from the parties—are included below. Use them in good health to avoid having to submit your own instructions multiple times.
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