Judge Andrews gave some strong guidance about the contents of pretrial orders today. District of Delaware local rule 16.3 requires that pretrial orders include a lengthy list of materials, including a "statement of the issues of fact which any party contends remain to be litigated."
These are often disputed. Parties typically file a pretrial order that sets forth each parties' version of the issues of fact, sometimes with a joint section for any issues where the parties agree. (By the way, that's why it's best for the parties to agree on a schedule for pretrial disclosures in advance of the pretrial order—to avoid having to Frankenstein a pretrial order together on the day of filing. But that's a topic for another post.)
In In Re Sitagliptin Phosphate ('708 & '921) Patent Ligitation, MDL No. 19-2902-RGA (D. Del.), the defendants attempted to submit a 353 page long statement of contested issues of fact. According to plaintiff's letter to the Court, the defendant's strategy—which they set forth in a meet-and-confer—was to threaten to move to strike any expert testimony not contained in plaintiff's statement of fact.
This did not go over well with Judge Andrews:
The parties have submitted letters that in part argue about what a "Statement of Contested Issues of Fact" in a proposed pretrial order should look like. (D.I. 561, 562). If one side's statement of such issues is 353 pages long, that's ridiculous no matter what, but particularly so for a trial of less than a week. . . . I do not know what is the right length of a final statement of contested issues of fact. But I doubt that 353 pages would ever serve any purpose for anyone.
He specifically shut down the idea of objecting to expert testimony that wasn't directed to a contested issue in the pretrial order:
I have no recollection of anyone ever objecting to testimony because an expert offered testimony that was in an expert report but not set forth in the statement of contested issues of fact. If someone made such an objection, I am confident I would not sustain it.
Judge Andrews also used this opportunity to explain his thoughts on the purpose of these statements of issues of fact in D. Del. pretrial orders and his pretrial conference procedures:
I have not needed to give this rule much thought previously. Some portions of the proposed pretrial order need to be addressed by a judge before the start of trial, for example, the voir dire, the preliminary jury instructions, and the motions in limine. Other than that, the only things in the pretrial order that I usually address at the pretrial conference are the text of the order and the number of witnesses and the general subjects of their testimony, which essentially relate to the issue of how long the trial will take.
All other portions of the pretrial order are generally for the benefit of the parties, if anyone. What the contested issues of fact are at a micro level are generally irrelevant to me. . . . The contested issues of fact in the pretrial order do not involve me – they are exchanges between the parties and, hopefully, serve some identifying and/or narrowing purposes for the parties as they get close to trial.
He did, however, give clear guidance on the correct length of a statement of contested issues of fact for a one-week trial:
For a five-day antitrust trial for which I held a pretrial conference last week, the parties submitted a total of less than sixteen pages for the contested issues of fact. I would think this was very much in the range of a reasonable submission.
He concluded by outlining an ideal statement of facts—one that leads the parties to stipulate to resolutions of uncontested issues, avoiding the need to address them at trial and saving time.
Thank you to Dan Silver, who filed the prevailing letter here, for letting us know about this docket entry!
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