Just a blog service announcement: We'll be going on a bit of a blogging hiatus for the next week or two. Our firm handled a trial last week before Judge Andrews as local counsel, and we're set for three simultaneous trials this week before Judges Connolly, Andrews, and Noreika. Then we have yet another trial the week after, before visiting Judge Wolson.
If you're adding them up, that's five trials in three weeks as local counsel! So we're up to our necks in prep work, with about a dozen visiting co-counsel and staff using our offices as trial space, and we're going to have to slow down a bit on …
The District of Delaware sometimes requires the parties to file joint status reports, usually either at dates set in the scheduling order (e.g. an "interim status report") or following developments in the case that require more information, like a stipulated stay that has expired, or after a communication from the parties regarding a development in the case.
Typically, by convention, plaintiff handles the initial draft of these reports—but not always. Either way, one side will send a draft, and the other side will prove its position, sometimes reflexively opposing whatever is in the initial draft. The final report will often be split, with "Plaintiff's position" and "Defendant's position," although sometimes the parties will agree to a …
On Friday, Judge Andrews issued an opinion adopting a Special Master opinion, which held that certain pre-litigation testing documents were not covered by attorney privilege.
Pre-Litigation Testing Not Protected by Attorney-Client Privilege If Not Provided to Attorneys
The Court found that the pre-litigation scientific testing was not covered by attorney-client privilege, even though they may have been done "at the direction of" a law firm, because the core purpose was for the client's understanding rather than for facilitating legal advice:
I do not think [plaintiff] First Quality has shown that the attorney-client privilege applies to any of the [relevant] disputed . . . documents. Plaintiff's position is that everything [the expert] Dr. Malburg did falls "well …
Delaware judges routinely refer motions to one of our four regular magistrate judges. This is no surprise in a court with such a busy docket, especially when so many of our cases are complex patent matters.
One question I'm frequently asked when a matter is referred to a magistrate judge is "how will this affect the decision time?" It's a sensible question, and one might imagine that a referral from a busy Article III judge to a magistrate judge might result in a quicker resolution. The answer, however, appears to be that magistrate judges take about the same amount of time to resolve issues as the Article III judges.
In a new standing order today, Judge Connolly announced a new procedure for SJ motions in patent cases. Going forward, he will require parties in all patent cases (current and future) to rank their summary judgment motions, and if any motion is denied, he will generally deny all lower-ranked motions as well:
1. A party that files more than one summary judgment motion shall number each motion to make clear the order the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on.
2. The Court will review the party’s summary judgment motions in the …
The new amendment is focused on getting rid of some pitfalls in the previous procedure for filing a notice of appeal.
The old rule required a party to file a notice of appeal identifying the "judgment, order, or part thereof" that it is appealing. As explained in the comments to the amendment (embedded below), some courts interpreted that language strictly to hold that a party who named a specific order waived their right to otherwise appeal the judgment:
Whether due to misunderstanding or a misguided attempt …
Judge Connolly put this oral order on the docket on Thursday:
ORAL ORDER: The Court has read Plaintiffs' April 7 letter . . . . The Court understood Mr. Groombridge's response to be in substance what Plaintiffs outline in their letter. The Court asked an imprecise question. But the Court had in mind what Mr. Groombridge had in mind. Mr. Groombridge has appeared before the Court on numerous occasions and the Court appreciates and respects his practice of conceding points he should concede and getting to the heart of the disputed matters before the Court. All counsel would do well to follow his lead in that regard.
Sit back, relax, and enjoy this long post about D. Del. local rules...XPS, Unsplash
The District of Delaware's local rules are available on the court's website, but they don't tell the whole story—there are a number of critical rules and practices set forth in other documents that are not as obvious on the site.
These can really trip you up if you're not familiar with D. Del. practice.
This post is geared towards mainly towards out-of-town or in-house counsel. It covers the basics and then lays out where to find some of those other important rules if you have a …
One common question for local counsel is "can we file something asking the Court to rule on our motion"? And the answer is usually something along the lines of "no," except in certain situations.
This week I saw an example of a letter near the other end of the spectrum, in which a party asked gently urged the Court to consider a pending motion and got a good result.
A Letter That Worked
Plaintiff had moved for leave to amend their complaint to add two patents to a five-patent case, where all of the …
Service of process on a foreign defendant can be tricky. If the foreign defendant will not agree to waive service under Rule 4(d), a plaintiff is left with methods of service under Rule 4 that are often complex and time-consuming, and come with no guarantee that the service will ultimately be effective.
And while Rule 4 does not set a deadline for service of process on foreign defendants, as it does for domestic defendants, the time to serve is not unbounded. Helpfully, Rule 4 provides a fallback that opens up the door to other--perhaps less onerous--methods of service, including simply sending an email (in the right circumstances).
Last week Magistrate Judge Hall permitted service on a foreign defendant by email pursuant to FRCP 4(f)(3), which provides that, in addition to various other methods of service, service of process may be achieved "by other means not prohibited by international agreement, as the court orders."
As Judge Hall recounted, plaintiff DivX LLC first attempted service by certified mail on Taiwanese defendant Realtek Semiconductor Corp., but Realtek apparently refused to accept the mail delivery. ...
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.
