An order on Friday reminded me of a local counsel issue that comes up from time to time here in D. Del.
Whenever a party files a motion or a brief, the docket on PACER automatically includes a due date, like so:
312 OPENING BRIEF in Support re 311 MOTION to Amend Judgment, filed by ViaTech Technologies Inc..Answering Brief/Response due date per Local Rules is 11/8/2023. (Mayo, Andrew) . . . (Entered: 10/25/2023)
ViaTech Technologies, Inc. v. Adobe Inc., C.A. No. 20-358-RGA-JLH (D. Del. Oct. 25, 2023).
The docket text is not perfectly clear, but that due date is automatically generated based on a set of rules in PACER (that are …
It's easy to think that, once an opposing party takes a position on the record as to a legal issue, it can never change that position. Not so.
Today Judge Andrews addressed an argument that defendants who lost at trial were nonetheless bound by their "judicial admissions," thus preventing them from taking a (purportedly) contradictory position after trial. Not surprisingly, the defendants disagreed:
Plaintiff argues that Defendants made representations before and at trial that directly contradict positions that Defendants must take in order to prove an interference-in-fact. . . . Plaintiff notes that Defendants' representations were "judicial admissions." . . . . Therefore, Plaintiff argues, Defendants cannot establish an interference-in-fact between the '537 patent and the '207 patent, and I must dismiss the counterclaim against the '537 patent as moot for lack of subject matter jurisdiction.
Defendants respond that Plaintiff does not invoke estoppel—or any other legal theory—that would support dismissing their claims. . . . Defendants add that, in any case, they are not estopped from abandoning their trial positions, nor from invoking theories that Plaintiff presented at trial, because Plaintiff prevailed over them at trial.
At a hearing today, Judge Kennelly set forth his preferences on how parties files documents in CM/ECF. He explained that he deals with all filings electronically, and large exhibits as permitted by the Delaware CM/ECF system interfere with his work flow.
He threatened to deny motions going forward (at least in that case) if parties combine exhibits in that way, specifically pointing to the following docket item:
As you can see in the highlight, the party combined multiple exhibits into sub-filings, which makes it difficult and slow to download, and impossible to download individual exhibits.
Judge Kennelly prefers that parties do it this way:
Visiting Judge Wolson has expressed similar concerns for similar reasons, and his procedures go a step …
Words to live by when thinking about whether you need to go to the Court on your nth dispute this week.George Pagan III, Unsplash
It's easy, especially at trial or in the lead-up to trial, to feel like you need to bring every dispute to the Court. The stakes in patent cases tend to be high, clients want to see progress, and sometimes every little dispute ends up feeling critical (particularly if the outcome impacts your trial plans).
Beyond that, sometimes more junior associates are tasked with handling disputes as trial approaches—and may be given the implicit authority to raise disputes, but not to resolve them. Shockingly, disputes can then multiply pretty quickly.
A lot of things can go wrong in law. Keeping track of the labyrinthine tangle of laws, local rules, standing orders, and judicial preferences, is a daunting task. Checking and re-checking documents to make sure they comply with all of these rules is enough to make a person a bit neurotic. But, with the aid of experience and some hard lessons, you eventually come to grips with things and develop a certain comfort with the systems hard edges.
Until of course you stumble upon something new to worry about, and then you get the shakes all over again.
AI-Generated, displayed with permission
To that end, I submit to you this footnote in Cipla USA, Inc. v. Ipsen Biopharms., Inc., C.A. No. 22-552-GBW-SRF (D. Del. Mar. 1, 2023) (R&R), on the dangers of not checking your links:
In support of this assertion, Ipsen cites an "Update to Information Regarding Medicare Payment and Coding for Drugs and Biologics," dated May 18,2007. (D.I. 23 at 4 n.4) A document by the same name and having the same date is referenced in Cipla's complaint. (D.I. 1 at [Paragraph] 5c) To the extent that these documents are, in fact, the same, the court may consider them as "matters incorporated by reference" into the complaint without converting the motion to dismiss to one for summary judgment. See Kickjlip, Inc. v. Facebook, Inc., 999 F. Supp. 2d 677, 682 (D. Del. 2013). In this case, however, there are different hyperlinks associated with the document in the complaint and in Ipsen's reply brief. (Compare D.I. 1 at, 5c with D.I. 23 at 4 n.4) The hyperlink in the complaint functions, whereas the hyperlink in the reply brief does not. Ipsen does not set forth any basis for the court's consideration of the material, and the court cannot independently verify whether this material is the same as the document referenced in the complaint due to the defective hyperlink.
Id. at 7 n.4.
Oof. To Summarize here -- the defendant moved to dismiss and cited a document that was linked in, but not attached to, the complaint. The Court declined to consider it, because the link in the brief was ...
Pictured: The poor associate, who writes the briefs, carts the boxes, and dutifully passes polite notes up as the partner mangles the argumentAI-Generated
One question I've seen from time to time is "what should we bring to the hearing?" Not "how should we prepare," but what physical stuff should litigators bring on the day of a hearing or oral argument?
I thought it would be useful to post a checklist—both for you, our readers, and so that I can send it around in response to future questions.
The checklist below should be considered ideas for what to bring. Practiced litigators undoubtedly already have their own systems, and every hearing is different. You should not bring everything below to every hearing. This list is instead meant as a last-minute, "I'm about to head out the door, is there anything else I should bring?" checklist to spark ideas.
Note that this is geared towards oral argument in patent cases in the District of Delaware, but much of it is applicable to other kinds of hearings ...
As we've mentioned in the past, in D. Del. patent cases, the Court often sets deadlines for submission of a "status report" (or, sometimes, a "joint status report" or "interim status report").
These orders can be somewhat vague. The Court doesn't always request "a joint status report regarding xyz." Instead, at times, it will issue a generic request for a status report, like this:
ORAL ORDER - IT IS HEREBY ORDERED that, on or before 9/23/2022, the parties shall submit a joint status report. ORDERED by Judge Maryellen Noreika on 9/16/2022.
To which the natural human response is "a status report about what?" Usually, though, it's pretty obvious from the docket. In the case above, C.A. No. 21-459-MN, the case is stayed pending appeal of another case, and the order follows a more than year-long delay with no action. The Court probably wants to know the status of the appeal.
The next question is often "how much detail does the Court want?" The answer seems to vary depending on the context. It's usually safe to assume that the Court does not want disputes or argument from the parties, and that it likely appreciates a concise statement of only what the Court needs to know to take action. But it can be hard to say for sure ...
Freshly preserved arguments, ready to be set aside for the winter...Olia Gozha, Unsplash
Parties often try to expressly reserve, preserve, and/or avoid waiver of arguments or the right to seek relief, often in a paper filed or served on the deadline to make the argument or seek the relief. It may not always work—but it's not very costly to give it a shot, either.
Last week, in Aqua Connect, Inc. v. TeamViewer US, Inc., C.A. No. 18-01572-MN (D. Del.), Judge Noreika rejected an attempt by a plaintiff who prevailed at trial to avoid having to raise its arguments regarding post-trial interest during post trial briefing.
After plaintiff won a $5.7m verdict in a jury trial …
The District of Delaware announced today that it is instituting a 5pm filing deadline for all documents other than initial pleadings. Chief Judge Connolly issued an order revising section (F) of the Court's CMECF Procedures (part of the Court's other local rules):
Effective September 1, 2022, section (F) of the Court's Revised Administrative Procedures Governing Filing and Service by Electronic Means shall be further revised as follows, to reflect a new filing and service deadline of 5:00 p.m. Eastern Time for all documents other than initial pleadings:
(F) Deadlines
Filing documents electronically does not in any way alter any filing deadlines. Aside from initial pleadings, all electronic transmissions of documents (including, but not limited to, motions, briefs, appendices, and discovery responses) must be completed by 5:00 p.m. Eastern Time, in order to be considered timely filed and served that day. All electronic transmissions of initial pleadings must be completed prior to midnight Eastern Time, in order to be considered timely filed that day. When CM/ECF calculates a deadline, it will include intermediate weekends and holidays as prescribed in Fed.R.Civ.P. 6.
That's a lot of text. You may be wondering: did anything else change? No. The text is identical to the current version other than ...
It happens all of the time: You've got arguments A, B, and C that you want to fit in your brief, but you don't have the space to address them all.
What to do? Cut the weaker arguments?
For most attorneys, the answer is: of course not! They move the lesser argument to a footnote in a hail-mary attempt to win if the better arguments fail.
Does it work? Not usually. Here in D. Del., judges have suggested that parties waive arguments when they present them only in cursory footnotes, and Judge Noreika recently noted that "courts traditionally do not consider arguments presented entirely in footnotes." Nw. Univ. v. Universal Robots A/S, C.A. No. …
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.
