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What's The Worst That Could Happen?

Nathan R. Hoeschen, April 13, 2023
Sealing Redactions

DALL·E 2023-04-13 15.54.57 - 35 MM photo of smiling dentist holding bloody wrench and giving thumbs up
AI-Generated, displayed with permission

Motions for reargument are notoriously hard. Winning one is the legal equivalent of the going to the dentist and hearing that you really ought to take it easy and stop brushing so much.

Nevertheless, you see them filed all the time. I imagine the thinking is that, even if the odds are low, you've already lost the motion so things can't get any worse.

But they can!

Things can always get worse!

You could tell he was just trying to hold it in in the last photo
You could tell he was just trying to hold it in in the last photo AI-Generated, displayed with permission

This was the lesson in Carrum Techs., LLC v. Ford Motor Co., C.A. No. 18-1647 (D. Del. Apr. 11, 2023). A couple of weeks ago, the defendant filed a motion to seal one of its briefs. The motion was short and unaccompanied by a declaration, so Judge Andrews denied it in a one-sentence Oral Order.

Now it's unclear why exactly the Defendant filed a motion to seal in this instance, as the parties had previously filed many documents under seal without a motion in accordance with CM/ECF procedures. The defendant thus moved for reargument on the motion to seal, largely arguing that it hadn't needed to file the motion in the first place:

Over the course of this litigation, various other pleadings have been filed under seal by agreement of the parties. Ford did not intend to request different treatment of its Memorandum and Exhibits than prior sealed filings in this litigation. Rather, Ford proceeded in a manner ...
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Heads Up: Check Your Calendars for Sept. 21-22 Deadlines in D. Del. The Court May Have Just Moved Them.

Andrew E. Russell, April 12, 2023
Bench and Bar DED

I'll fix that for you...
Sasun Bughdaryan, Unsplash

The Court issued an order today clearing all of our calendars for the District of Delaware's Bench and Bar, which is set for September 21-22, 2023.

The order says that it moves all filing and service deadlines to the following Monday:

WHEREAS, the Court having announced that it will host its biennial District of Delaware Bench and Bar Conference on September 21 and 22, 2023, and the
Court wishing to promote the participation of as many members of the Bar as possible;
IT IS HEREBY ORDERED that all members of the court - District, Magistrate, and Bankruptcy Judges - will, to the greatest extent possible, cancel and refrain from scheduling court proceedings and filing deadlines on …
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Judge Williams Refuses to "So Order" Stipulation to Take Depositions After Close of Fact Discovery—Because It Is Unnecessary

Andrew E. Russell, April 12, 2023
Stipulation Scheduling Order

Stop Sign
Luke van Zyl, Unsplash

We've talked about how it's generally understood that parties can agree to modify certain deadlines in the District of Delaware without a stipulation, such as discovery response deadlines, deposition dates before the close of fact discovery, or deadlines under the Default Standard.

We were careful to exclude depositions occurring after the close of fact discovery from that list. After all, the fact discovery deadline is set by court order. Thus, parties often stipulate to take fact depositions after the close of fact discovery.

An opinion from Judge Williams yesterday held that these stips are unnecessary, and the parties can take depositions after the close of fact discovery without any stip to that effect:

ORAL ORDER: The Court has reviewed the Stipulation to take deposition outside fact discovery ...
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Chief Judge Connolly Cancels the April 11 Litigation Funding & Disclosure Hearings

Andrew E. Russell, April 10, 2023
Litigation Funding Standing Orders

I don't know if Air Canada actually flies here.
I don't know if Air Canada actually flies here. John McArthur, Unsplash

There were two litigation-funding related hearings set forth tomorrow in Chief Judge Connolly cases. Both were canceled today.

The first was in the Nimitz cases, C.A. Nos. 21-1362, 21-1855, and 22-413. As we discussed last week, the Court set this hearing after Nimitz failed to produce the broad formation- and funding-related discovery that the Court required from it.

Later last week, the plaintiff in that case produced the required documents. Today, the Court canceled the hearing so that it would have time to review the recent production:

ORAL ORDER: Whereas (1) on Thursday, April 6, 2023 at 4:23 p.m., Mr. Pazuniak submitted to the Court documents …
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A Mavexar Refresher

Emily DiBenedetto, April 7, 2023
Mavexar Litigation Funding

Litigation funding has become a popular topic this year, deserving of its own synopsis. For those who missed out on the recent blow-by-blow events as they happened, relive the saga below.

This is a bit lengthy. You've been warned. Pour yourself a cup of tea first and get comfortable.

Story Plot Points
Emily DiBenedetto

The Exposition: Discovery on Litigation Funding is a Mixed Bag

To set the stage, let's discuss litigation funding disputes in the District of Delaware before the most recent developments. Over the past few years, discovery disputes regarding litigation funding issues have produced mixed results. The Court sometimes grants motions to compel litigation funding materials, and other times denies them, and may (rarely) conduct an in camera review to evaluate …

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Clear and Unmistakable

Nathan R. Hoeschen, April 6, 2023
Claim Construction

I was trolling though recent opinions in search of a blog post topic (you're welcome) when I stumbled upon a recent Markman order discussing disclaimer. Now normally Markman orders aren't the most fecund ground for a post. But seeing the pro forma language about how prosecution history disclaimer required a "clear and unmistakable" disavowal I had to ask myself—"do they ever find that?"

I don't know why I asked for it to be Baron Harkonnen, but I did and now you have to see it too
AI-Generated, displayed with permission

The answer, is "not really, no." Frequent readers will know that I normally do the last 10 opinions, because I have forgotten all the math I used to know and its easy to calculate the percentages. Here though, I looked through the last 10 and was still at 0. So I pressed on until we hit a winner at the 15th oldest decision. For those with calculators, that's a 6.7% success rate.

What really surprised me about this number was that I only had to go back 2 months to find 15 cases where a defendant had alleged disclaimer, given the abysmal success rate. I'll update this post the next time we get a winner to see if we can piece together a unified theory of what makes these arguments work.

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How to Insta-Waive Your Objections

Andrew E. Russell, April 5, 2023
R&R Objections to R&Rs

Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections
Look closely—down at the bottom, where the huge bolt of lightning meets the hill, are defendant's R&R objections Brandon Morgan, Unsplash

R&R objections can be a minefield for attorneys. First, the governing rules are fairly stringent, and are set forth in multiple places (including Local Rule 72.1 and a separate standing order). Second, I think it's fair to say that most judges are not eager to have to review another judge's work and potentially reverse it if they don't have to, so the rules for objections tend to be enforced.

Here are some examples of things that parties sometimes miss. The objecting party must:

  1. "[S]pecify the portions of the findings and recommendations to which objection is made and the basis for each objection, . . . supported by legal authority."
  2. Include a certification stating that "the objections do not raise new legal/factual arguments" or identifying good cause for new legal/factual arguments.
  3. Set forth its objections in a single, 10-page opening brief with no reply brief, and the page limit is generally strictly enforced.
  4. File courtesy copies of "of all filings (e.g., motions, briefs, appendices) associated with the matter to which the R&R"—this can be easy to miss, and can result in waiver.
  5. Identify the exact standard of review.

That last one, identifying the standard of review, is easier said than done. The standard of review for R&R objections can be tricky, because ...

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A Crab in a Corner

Nathan R. Hoeschen, April 4, 2023
Mavexar Litigation Funding

When I was young, I had a pet crab. Not a hermit crab, but a big honking giant land crab. He lived in a terrarium in my room and I would wave at him every day when I left for school. He would wave back. This is the best part of having a crab.

I Miss You Too Legs!
I Miss You Too Legs! Alejandro Alas, Unsplash

What you might not know about crabs, is that they're smart. They are curious creatures that will spend their whole day wandering around foraging. They will slowly stack rocks in one corner of their tank to make a ramp. They will specifically make this ramp in the corner of the tank that has the inlet for the water filter. They will (somehow) remove the clamps holding the top down and seize freedom at any cost. It's pretty much like the velociraptors in Jurassic Park.

Longtime readers will have guessed that this story is leading to a development in the Mavexar saga. And readers, I will not disappoint you. Just hours ago, Judge Connolly issued a memorandum order in the Nimitz case setting ...

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New Discovery Order in One of the Mavexar Cases

Andrew E. Russell, March 31, 2023
Mavexar Litigation Funding

Mavexar Crab

We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.

We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …

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Dillegentsia

Nathan R. Hoeschen, March 30, 2023
Diligence Scheduling Order

Rule 16(b)(4) is deeply ingrained in the mind, body and soul of every DE lawyer. To modify the scheduling order, one must show good cause. Good cause, in turn, hinges upon the diligence of the movant.

More than 1,000 orders in DE patent cases analyze whether a party was diligent. Some have praised the herculean efforts of the parties (not a lot of those, honestly), while others cursed their lazy hides for daring hobble up the Courtroom steps (somewhat more common).

"Diligence" AI-Generated, displayed with permission

I have analyzed every single one to determine how often the Court found diligence.

I'm sorry that was a joke. We have a GoFundMe for an intern. Please donate if you would like that level of analysis. Instead I have looked at the last 10 such opinions and orders. Of those, a scant 3 found the movant diligent and granted the requested schedule extension, whilst 7 found the movant had delayed and denied the request.

Obviously this is a fact-dependent inquiry, but it's something to consider the next time you move for an extension.

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