Today was the Federal Bar Association's annual luncheon, an annual event where the Chief Judges give updates on the status of Delaware's District and Bankruptcy courts.
This year's event was the first in-person meeting since the start of the COVID lockdowns. It was great to see everyone again in person!
Attendance was relatively low. Some speculated that this may be due to expiring FBA memberships. My theory is that there may have been an issue with the invitation e-mail (I never received it myself, and I'm a current FBA member).
In any case, I wanted to post some highlights and interesting facts from the speakers today, as we did for the virtual event last year:
- The court is back to having in-person FBA events! For District of Delaware practitioners, here are some upcoming events:
- An in-person CLE and farewell to former Chief Judge Stark in September, 2022
- The Federal Bench and Bar is returning in 2023
- The Court's amazing Federal Trial Practice Seminar (in which they give away all of the secrets of being a Delaware attorney) will return in 2024
- As we've mentioned, Chief Magistrate Judge Thynge is, unfortunately for us, retiring. The Court has to seek authorization for her replacement, and is in the process of doing so.
- The District Court's case load continues to be heavy, with about 21% of all new patent cases being filed here, many of which are high-workload ANDA cases.
- The District of Delaware is ranked second overall in terms of weighted case filings per judge—we would be higher, but we have fewer MDL cases than other courts, and those cases may skew the rankings a bit.
- Since the changes in March, about 35% of cases have consented to magistrate judge jurisdiction. The Court is working to build a culture of magistrate judge consents, and Chief Judge Connolly suggested there may be more experimentation in that area.
- The Court is re-convening the Court's advisory committee, which will review the local rules for updates to streamline practice here.
- As part of the potential local rules changes, Chief Judge Connolly mentioned that the judges favor moving to a 5:00 pm filing deadline instead of the current 6:00 pm deadline. I think that would be a great change, as the 6pm deadline can be tough to deal with for attorneys and staff who have kids in daycare (daycare providers often require pickup at 5:30)!
Judge Shannon of the Bankruptcy Court gave an update on the Bankruptcy court as well. That court has seen less of a post-COVID surge in bankruptcy cases than expected, although filings are starting to tick up, and the judges on the Court remain far busier than the national average. The Court, however, is preparing for an expected budget cut in the coming year.
Judge Shannon also mentioned that that he has been happy to transition away from Zoom use, although the Bankruptcy Court may continue to use it or similar tools to ease the burden for consumer bankruptcies.
I haven't seen a formal annual report circulated yet as in prior years (please feel free to let me know if I'm missing it!) but I'll plan to post about that as well when it is released.
A Local Rules Update? Yes Please!
We've discussed before how there are many things that are important to know for practice here in the District of Delaware but that are not (yet) incorporated in the District of Delaware local rules. I think it's great that the Court is looking to update the rules—in my view, there are lots of opportunities to tweak or streamline the existing rules.
I've actually been thinking about a blog post on just that topic. Here are some quick ideas of areas that the committee could explore:
- Word limits as an alternative to page limits
- Clearer transcript redaction procedures for trade secret and similar confidential information (the deadlines and procedures for the required motion are unclear, and the automatic CM/ECF deadlines do not reflect the Court's existing redaction policy)
- Make e-mail service automatically acceptable under FRCP 5(b)(2)(E) (e.g. consider a local rule that removes the consent requirement, perhaps just for service to attorneys who have appeared via CMECF)
- Clarify the deadlines and scope of pre-trial exchanges between the parties, including e.g. for deposition designations
- Consider more flexible briefing structures under LR 7.1.3(c)(1)
- Incorporate some of the more substantive rules from the CM/ECF procedures into the local rules
- Tweak the rules that few people seem to follow (ahem, I'm looking at you, LR 5.4(b)(3) and 16.4(b))
- Adjust LR 30.1 to make clear that agreed-to depositions are fine with less than 10 days' notice
- Implement a deadline for 30(b)(6) objections, and consider formalizing the rule against contention topics, to prevent that recurring dispute
- Shouldn't LR 43.1 prevent discussion with witnesses until after redirect at trial, not just cross? Or maybe until the witness is off of the stand? This actually came up in a trial of mine recently.
- Adopt a rule that parties must meet-and-confer prior to filing an FRCP 12(b)(6) motion to dismiss (giving the opposing party an opportunity to amend and avoid the cost of briefing and argument)
- Finally, as my partner John Shaw has suggested, the Court could adopt something akin to the Court of Chancery's Rule 15(aaa), which reduces the burden on the parties and the Court for motions to dismiss by avoiding the inevitable amendment after the plaintiff loses:
[A] party that wishes to respond to a motion to dismiss under Rules 12(b)(6) or 23.1 by amending its pleading must file an amended complaint, or a motion to amend in conformity with this Rule, no later than the time such party's answering brief in response to either of the foregoing motions is due to be filed. In the event a party fails to timely file an amended complaint or motion to amend under this subsection (aaa) and the Court thereafter concludes that the complaint should be dismissed under Rule 12(b)(6) or 23.1, such dismissal shall be with prejudice . . . unless the Court, for good cause shown, shall find that dismissal with prejudice would not be just under all the circumstances.
We'll do follow-up posts as the Court releases more information about any potential rules updates!
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