A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: COVID-19

It's interesting that the Court is now regularly offering public access information for remote hearings. I can't recall it doing that before the coronavirus.

The only pre-coronavirus remote hearings I can think of were for scheduling and discovery dispute conferences, where public access is not usually a concern. Scheduling conferences often took place privately in chambers even when they were in-person, and discovery dispute conferences often involve confidential information anyway. It looks like they judges are still handling these how they always have.

These days, however, the Court regularly holds all kinds of other, more substantive hearings remotely, and most of the judges have been taking steps to allow the public to attend. Here is what the judges have been …

If these public Zoom links become more common, I'll likely stop posting about them (especially now that jury trials are set to resume). But for now, here is the Zoom link for today's trial in Xcoal, which restarted at 9 am this morning:

ORAL ORDER: The bench trial is available to the public by telephone, using dial in: 1-703-552-8058 and Conference Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/99196614906: Meeting ID: 991 9661 4906 Password: 166996. Audio or video reproduction of the proceeding is strictly prohibited. ORDERED by Judge Leonard P. Stark on 9/14/20. (ntl) (Entered: 09/14/2020)

As a reminder, this is the trial that was derailed immediately after opening statements by the receipt of an …

Looks like Judge Fallon is trying out a new way of doing public hearings, with a YouTube mirror of a private Zoom teleconference at 10:00am ET on Tuesday 9/15:

ORAL ORDER- The Markman Hearing on 9/15/2020 will be a public hearing. The YouTube link for interested members of the public to observe the live Zoom session is https://www.youtube.com/watch?v=w-9WpLOvaLk&feature=youtu.be.

NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA-SRF (D. Del.).

The hearing is scheduled to last 3 hours and cover 6 terms.

To my knowledge, this is the first D. Del. hearing to post a public YouTube (rather than Zoom) link, at least in the IP space.

Honestly this sounds like a good way …

COVID-19
COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

The District of Delaware's current coronavirus-related standing order banning jury trials expires Tuesday, 9/15.

When it expires, the Court will allow jury trials under its Phase 2 guidelines, starting with only a single jury at a time, and prioritizing criminal cases.

So far there has been no indication that the Court will extend the ban, although the previous extension occurred on day the last order expired.

Upcoming trials were rescheduled in a total of five cases this week, but it looks like those were rescheduled at the parties' request (four of those cases were related to last weeks' delay in the Sprint action).

The most recent information I've seen from …

Artists' rendering of the anonymous letter
Artists' rendering of the anonymous letter Brando Makes Branding, Unsplash

Chief Judge Stark today rescheduled the Xcoal trial for Wednesday of next week. The trial was previously derailed following receipt of an anonymous letter just after opening statements.

The opinion (embedded below) has a great summary of the facts of the trial so far, which are very unusual.

In resuming the trial quickly, he hoped to deter others from sending similar "anonymous letters" to interfere with other trials. He also noted that this is the only time the Court will have available for bench trials in the near future, because of the backlog of criminal and civil jury trials which should start back this month:

[T]his District hopes and …

Judge Andrews noted this week that he is currently allowing only two attorneys per side for in-person bench trials, including for a trial scheduled to start on Sept. 14th, and that he "may insist on this practice for some time." Sprint Communications Co., L.P. v. Charter Communications, Inc., C.A. No. 17-1734-RGA, D.I. 545 at 2 (D. Del. September 2, 2020).

He also said that he "anticipate[s] a jury could be assembled for an October 5 trial," but did not want the first post-COVID-19 civil jury trial to be one that involves primarily out-of-town attorneys and personnel.

The trial at issue was ultimately delayed for other reasons, including the fact that there are still nine pending motions, and …

Expert Witness Examines Evidence at Upcoming Bench Trial
Expert Witness Examines Evidence at Upcoming Bench Trial Ani Kolleshi, Unsplash

As the court moves closer and closer to resuming normal operations, Judge Noreika has released a new order describing the procedures for her first COVID-19 bench trial with live attorneys (although still remote witnesses).

TriMed, Inc. v. Arthrex, Inc., C.A. No 18-666-MN, was originally slated for a jury trial on September 14, 2020, but was converted to a bench trial on the same dates following a teleconference on July 30.

Other than the lack of in-person witnesses, the trial appears to be remarkably similar to a bench trial in the before-times, with the only major concessions to the pandemic being required masks, the use of electronic witness …

The District of Delaware's previous standing order banning jury trials would have expired today, but the Court issued a new order extending Phase 1 (no jury trials) through September 14.

The Court is currently holding bench trials but not jury trials.

The previous extension moved the expiration date back six weeks, but this extension only moves the date back by only two weeks.

This shorter extension may indicate that the Court is gearing up to start dealing with the backlog of trials, although at least one judge indicated as recently as two weeks ago that he thought September jury trials were unlikely.

Today, Chief Judge Stark posted a public Zoom link for a bench trial starting Tuesday morning:

The bench trial is available to the public by telephone, using dial in: 1−703−552−8058 Code: 944408, or by video, using the following link: https://trialgraphix.zoom.us/j/93843275500, Meeting ID: 938 4327 5500 and Passcode: 974842. Audio or video reproduction of the proceeding is strictly prohibited.

This is a competitor case involving a contract for the delivery of coal—it's the one where the defendant attempted to delay the trial using due process arguments. Trial is scheduled to start Tuesday and run through Friday:

  • Tuesday, August 25: 9 am to 5 pm
  • Wednesday, August 26: 9 am to 5 pm
  • Thursday, August 27: 8:30 am to 10 …