This is an interesting order from earlier this month that we never had a chance to post about.
In Ecobee, Inc. v. EcoFactor, Inc., C.A. No. 21-323-MN (D. Del.), the parties had a Markman hearing scheduled for December 8. As she often does, in the leadup to the hearing, Judge Noreika issued an order directing lead counsel for the parties to meet-and-confer to reduce the number of disputes:
ORAL ORDER . . . IT IS HEREBY ORDERED that, on or before 12/1/2022, local and lead counsel (i.e., those attorneys that will be leading trial) for the parties shall meet and confer and file an amended joint claim construction chart that sets forth the terms that remain in dispute. The meet and confer shall focus on an attempt to reach agreement on any remaining disputed terms where possible and on an attempt to focus the dispute over the remaining terms in light of the joint claim construction brief. Accompanying any amended joint claim construction chart, the parties shall file a letter with the Court identifying by name each individual who participated in the meet and confer, when and how that meet and confer occurred and how long it lasted. If no agreements on constructions have been reached or if no dispute has been narrowed on the meet and confer, the letter shall so state and the parties need not file an amended joint claim construction chart.
D.I. 63.
On 12/1, the deadline set in the order, the parties filed a letter stating that they had met-and-conferred for a relatively short time:
Pursuant to the Court’s November 8, 2022 Oral Order, the following counsel for Plaintiff ecobee, Inc. (“ecobee”) and Defendant EcoFactor, Inc. (“EcoFactor”) met and conferred on November 29, 2002 from 12:00 PM – 12:15 PM. . . . The parties were unable to reach further compromises . . . .
D.I. 71. That letter provoked a reaction from the Court, who directed lead counsel for the parties to meet-and-confer in person before the hearing:
ORAL ORDER re 71 Letter - The parties did not comply with the Court's November 8, 2022 Oral Order requiring a good-faith meet and confer. Instead they waited until two days before the compliance date and spoke for 15 minutes about no fewer than six disputed terms. That lack of effort shows a lack of respect for this Court and its Order. THEREFORE, IT IS HEREBY ORDERED that on or before December 7, 2022, lead counsel (i.e., counsel who expects to try this case) shall meet and confer IN PERSON and comply with this Court's November 8, 2022 Oral Order. Failure to do so may result in sanctions.
D.I. 72.
Did They Actually Meet? It's Unclear
In response to the Court's order, the parties filed a letter explaining that the parties have been litigating the case for "over three years," including in a prior ITC action that went to trial with the same counsel, and have "met and conferred extensively." D.I. 73. They asked permission to meet-and-confer virtually instead of in-person.
The parties filed that letter on December 4; the deadline to meet-and-confer in-person was December 7, and the hearing was set for December 8. On December 6, they filed another letter indicating they had held three additional meet-and-confer sessions—but did not say whether they were in-person.
Nothing on the docket indicates that the Court let them off the hook on the in-person meet-and-confer.
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