Motions to stay are common as dirt, and about as interesting.
The factors are exactly what you expect them to be, and the Court has broad discretion to apply them. Most of these motions could be reduced to a checklist:
If there is one thing that tends to kill discovery motions, it's delay. If you want to have the best chance of winning your motion to compel, supplement, strike, etc., you need to bring the motion early. Don't wait.
We got a good example of that last week in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH, D.I. 163 (D. Del. Apr. 9, 2024). There, a defendant sought to compel a deposition of an inventor before a Markman hearing, arguing that the testimony was important for claim construction. The Court denied the request, in part because they waited too long:
ORAL ORDER: The Court has reviewed the discovery …
On Wednesday, Judge Fallon issued a memorandum order in Kurt Morales II v. Sunpath Ltd., C.A. No. 20-1376-JLH-SRF (D. Del.), a class action suit alleging that various defendants are telemarketers who made robocalls violating the Telephone Consumer Protection Act.
More than three years into the litigation, counsel for one of the defendants, Sunpath Ltd., withdrew, and the Court ordered Sunpath Ltd. to retain new counsel. D.I. 232. When it failed to do so, the clerk entered a default against it. Id.
Plaintiff argued that Sunpath defaulted specifically to avoid having to face discovery. D.I. 265 at 1. Plaintiff therefore served a subpoena on Sunpath's e-discovery vendor Everest Discovery, LLC who, unsurprisingly, pushed back. …
Power Integrations, Inc. v. Waverly Licensing LLC, C.A. No. 22-1554-CFC (D. Del), is one of my favorite complaints ever. Waverly -- allegedly one of the Mavexar companies -- sued Power Integrations for infringement in Texas right before Judge Connolly held his first hearing in the Mavexar matters in November of 2022.
In a truly inspired move, Power integrations then filed a DJ complaint in Delaware (its state of incorporation) alleging that "Defendants have engaged in a broad and aggressive campaign to harass and threaten many companies, including Power Integrations, with assertions of patent infringement liability . . . ." Id. at D.I. 1. Notably, they managed to get this complaint on file by the end of November 2022.
The complaint is well worth a read, but the best bit is definitely when they point out that Waverly's official address is actually an empty shelf in a Staples:
In an assignment filed with the U.S. Patent and Trademark Office for the ’246 patent, defendant Array IP LLC identified itself as having the same address that defendant Waverly Licensing LLC lists in the Waverly-PI complaint as its principal place of business (3333 Preston Road, Suite 300, Frisco, Texas 75034). (Id.) However, that address is actually a Staples store . . . Moreover, the specific box number that defendant Waverly occasionally lists in its court filings as its “principal place of business” within that “suite” is an open shelf.
Id. at paragraphs 12-13.
There are pictures and everything, it's really great.
This complaint prompted all of the DJ defendants -- which included Waverly, Mavexar itself, and several others -- to ...
The District of Delaware generally permits parties to file things under seal without a motion to seal, and requires parties to file a redacted version within 7 days. Usually, the Court permits parties to handle redactions without judicial intervention (although notalways).
As we've written aboutrepeatedly, Judge Andrews regularly rejects redacted versions of filings that take the easy way out and simply redact entire exhibits rather than doing line-by-line redactions.
While we were out last month, the Court issued a similar order in a case before Judge Hall:
DEFICIENCY NOTICE by the Court issued re 238 Redacted Document. The redacted filing (D.I. 238) is REJECTED because parts of it are redacted in its …
Hello again my dear readers. I would like to apologize for my long absence, I have missed you almost as much as you have missed us. I would also like to apologize for Andrew's post yesterday, "we're back" which failed to make a joke about the disturbing 90's animated feature "We're Back! A Dinosaur's Story" in which a one-eyed carnival barker with mind control powers is eaten by crows. It shan't happen again.
With that out of the way, I wanted to call attention to a recent opinion from Judge Williams on a contract dispute between various NPE entities. We don't get to see these much as they're usually heavily redacted, but as my father used to say, "you can't redact what's in your heart." So too, it's tough to redact a court opinion on a contract you're suing over so we get a lot of detail here.
(Eds. note - my dad does not actually say that)
The agreement in CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456-GBW (D. Del. Mar. 13, 2024) (Mem. Op.) involved a bewildering array of related parties with silly names exchanging ludicrous sums. CBV had a portfolio of patents "related to the delivery of high-speed date over cable systems." Id. at 3. Apparently they weren't doing CBV much good just sitting around, because they sold them to IP Navigation group, which does just what it says on the tin. IP Navigation then created ChanBond for the purpose of buying and enforcing/licensing the patents and CBV transferred them in exchange for (drumroll . . . ) ...
Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.
The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.
The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimesrequired parties to seek leave before filing summary judgment motions.
An eclipse! It's a sign! Time to restart the blog.Andrew E. Russell, displayed with permission
About a month ago we put the blog on hold for our storm of impending trials. Some of those ultimately resolved or moved, and we still have a couple coming up in the next five weeks. But, for now, we're starting the blog up again.
We have a back log of interesting things to address—starting with a post today about Judge Hall's views on summary judgment ranking and page limits. Enjoy!
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.
