Judge Williams has now posted his form scheduling orders on the District of Delaware website.
I took a look through his non-ANDA scheduling order, and it will be extremely familiar to Delaware practitioners. It mostly tracks Judge Noreika's form order.
Judge Williams' form order does, however, pull in portions from other Delaware judges' form scheduling orders. Here are some changes in Judge Williams' new form order as compared to Judge Noreika's form:
- Discovery disputes and motions to amend or strike use language from Judge Stark's form scheduling order.
- Parties sometimes get tripped up on this, and forget that motions to amend or strike have special rules—so keep that in mind if you have a Judge Williams case.
- The tech tutorial language pulls from Judge Stark's form, but with some major changes. Like in Judge Stark's form, tech tutorials are required, not optional. But, unlike in Judge Stark's form, the tech tutorial must be joint, and there is no provision for the parties to comment on or object to each others' tutorials.
- I don't recall any prior judge requiring joint technology tutorials. That will be interesting.
- I believe Judge Williams will be the only current Delaware judge who requires (rather than permits) tech tutorials. They are not optional.
- In my view, objections to tech tutorials are somewhat time consuming and of limited value. Parties rarely see the Court respond to these objections. Removing them seems like a good change.
- The claim construction briefing language pulls mostly from Judge Andrews' form, which has proven popular. He also adopts Judge Stark's practice of aiming to release a claim construction opinion within 60 days of the Markman hearing.
- The 60-day deadline suggests that Judge Williams may not aim to provide claim construction rulings at the Markman hearing.
Judge Williams also chose not to adopt a few provisions from Judge Noreika's form orders, suggesting he may have different views:
- Judge Williams dropped language prompting the parties to agree or disagree that expert declarations may be used in motion practice. Here is that language:
Expert Report Supplementation. The parties agree they [will] [will not] permit expert declarations to be filed in connection with motions briefing (including case-dispositive motions).
- In two instances, Judge Williams omitted language that discouraged parties from including "general summaries of the law relating to claim construction" in their briefing (one from Judge Stark's form, and one from Judge Noreika's)—perhaps he is more open to these kinds of summaries.
Judge Williams' ANDA scheduling order looks similar to his non-ANDA order, but (as usual) removes some of the disclosure deadlines and does not permit summary judgment.
I haven't heard any word yet on whether Judge Williams will permit parties to keep their current scheduling orders, but I wouldn't be surprised if he does, given that his form orders do not (yet) have any major changes from a typical Delaware scheduling order.
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