There was an interesting order last week in Cleveland Medical Devices Inc. v. ResMed Inc., C.A. No. 22-794-JLH (D. Del.).
The parties filed a letter initiating a discovery dispute conference with the Court. These letters must include non-argumentative descriptions of each dispute the parties raise with the Court. Here, the letter listed a total of nine motions to strike expert reports, including five from the plaintiff and four from the defendant.
Typically the Court reviews these letters and sets a date for a conference and for briefing on each sides' issues. Here, however, the Court took issue with the extraordinary number of disputes:
ORAL ORDER: If the Court is understanding it correctly, with the filing of D.I. 234, the parties are telling it that they wish to adjudicate nine different motions to strike expert reports. The Court has never seen that kind of outsized request before in this context. Indeed, it cannot easily recall even seeing half of that number of motions to strike expert reports having been filed in a patent case it has handled. And it does not have the bandwidth to address all of those motions now. So with regard to the May 20, 2024 videoconference hearing (if it is needed) and in the briefing leading up to it, the parties may each pick one of their motions (i.e., one of their bullet points listed in D.I. 234) to address. By no later than April 22, 2024, the moving party shall file a letter, of no more than two single-spaced pages, setting out their position as to their motion. By no later than April 29, 2024, the responding party shall file a letter, of no more than two-single spaced pages, setting out its response. By no later than May 6, 2024, the moving party shall file a reply letter, of no more than one single-spaced page. Ordered by Judge Christopher J. Burke on 4/15/2024. (dlb)
Id., D.I. 263 (Apr. 15, 2024).
Each side gets to pick one of their motions to strike for the Court to address. I'm sure the parties may be wondering—what happens to the other motions? Are they precluded? Will they be addressed after the first two? At the motion-in-limine stage? Will the parties just object at trial?
It looks like trial is set for August, so it won't take too long to find out. I suspect, like most disputes, some or all of these will fall away or be rendered moot as the case progresses. Still, it will be interesting to see whether and how the parties try to re-raise these issues if the case proceeds to trial.
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