Chief Judge Connolly issued a memorandum order in the Backertop case today. We talked previously about how the plaintiff in Backertop is an LLC whose sole member is a paralegal who is married to an attorney who works at Mavexar, who gets just 5% of the proceeds of litigating the patents owned by the LLC (the rest goes to Mavexar).
Following a hearing last year, the Court ordered production of various documents, and ordered the owner of the LLC to appear again for a hearing on June 8. She asked to attend remotely due to other obligations.
Today, Chief Judge Connolly denied her request, but rescheduled her appearance for July (the June 8 hearing will still go forward, by the way—only the attorneys will attend). In doing so, he gave some thoughts on the future of post-COVID remote hearings in Delaware:
Judicial Conference policy generally prohibits the broadcasting of proceedings in federal district courts. See Guide to Judiciary Policy, Vol. 10, Ch. 4, § 410.l0(a). That policy was temporarily changed during the COVID-19 pandemic to allow for remote public access to civil proceedings. James C. Duff, March 31, 2020 Memorandum, Administrative Office of the United States Courts, https://jnet.ao.dcn/sites/default/files/pdf/DIR20-054.pdf. Although this temporary policy has expired, the Judicial Conference has authorized a grace period for remote public access to civil proceedings through September 21, 2023. Roslynn R. Mauskopf, May 8, 2023 Memorandum, Administrative Office of the United States Courts, https://infoweb.ao.dcn/bcastpdf/DIR23-051.pdf. Nonetheless, during the grace period, remote hearings remain the exception, not the rule.
In short, it's not looking good for remote hearings in Delaware after September 21, 2023, once the grace period expires. That's what we expected when we noted the announcement from the Administrative Office, but I thought it was worth flagging the Court's statement on it.
The remainder of the order is absolutely worth a read as well, particularly the part where the Court deals with the witness's statement that she can't attend at all:
I assume that [the witness's] statement that she is unavailable to appear in this Court "at any time in the foreseeable future" was made without the benefit of input from counsel and was not intended to suggest that she does not take the Court's orders and proceedings seriously. See generally United States v. United Mine Workers of Am., 330 U.S. 258, 303 (1947) ("The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril."). As it appears that [the witness] may not currently be in communication with Backertop' s counsel of record in these cases and because [the witness] specifically cited her obligations as a paralegal for the Holmes Firm PC as one of the "reasons[] [she] do[es] not have the ability to travel to Delaware for this hearing in the foreseeable future," . . . I will also provide . . . the managing partner of the Holmes Firm, with a copy of this Memorandum Order and, to explain the situation at hand, copies of Nimitz Technologies LLC v. CNET Media, Inc., 2022 WL 17338396 (D. Del. Nov. 30, 2022) and the Memorandum Opinion and Order I issued on May 1 (No. 22-572, D.I. 32, 33; No. 22-573, D.I. 34, 35). Doing so will ensure that [the witness] receives notice of this Memorandum Order; and I suspect that Mr. Holmes will explain to [her] that, contrary to the assertions in her declaration, his firm does not in fact "require [her] physical presence" somewhere other than Delaware "throughout the entire summer" such that she cannot attend a hearing before this Court.
I have to think that the Court is right.
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