Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.
Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.
The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.
The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.
Judge Burke responded to the request for a teleconference the next day with ...
We got an interesting Daubert opinion from judge Burke yesterday. It's actually not in a patent case, but the issue was neat enough that I'm willing to make an exception to our usual rule.
(Eds. note—I really hate that Daubert is always italicized because its a case name, but the pronunciation is not at all French. I see italics and I get all excited to roll some R's or whatever and then I just sound like the midwesterner I am).
The issue: can an expert report be too polite?
They've always struck me as a very polite-looking creature, despite the whole cannibalism thingDavid Clode, Unsplash
The case involved various disclosures in a business transaction, and the expert in question was an accounting professor opining on whether certain financial disclosures were deficient. Reading through the statements, they do strike me as unusual for an expert report:
“I am uneasy about the fact that there were no disclosures [in the financial statements] about Schratter’s ability to continue to operate as a going concern.”
“I was surprised that the financial statements did not make any mention of a possible impairment of goodwill. . . . Given the financial condition of Schratter in 2014 and its recent financial performance, I would have expected to see some disclosures about an impairment test for goodwill and why no impairment was recorded.”
ECB USA, Inc. v. Savencia, S.A., C.A. No. 19-731-GBW-CJB (D. Del. June 10, 2024) (Mem. Order) (quoting expert report of Ricky Lee Antle).
I mean, you see it right? This sort of language—both personal and measured—is the sort you might expect to hear from your own deeply disappointed accountant, rather than in an expert report. Still, it's tough to say what exactly would be objectionable about it.
The tack defendants chose was to challenge these statements as ...
"Did . . . did he just end our case with deposition testimony? Ah, I'm sure it will be fine."AI-Generated, displayed with permission
The Court unsealed a memorandum order yesterday in Sensormatic Electronics, LLC v. Genetec (USA) Inc., C.A. No. 20-760-GBW (D. Del. Mar. 27, 2024), where Judge Williams found a patent case exceptional, and awarded fees against the patentee plaintiff.
The Court previously held that one of the asserted patents, the '652 patent, was invalid because it was offered for sale after it was reduced to practice and more than a year before when the inventor applied for a patent.
In this order, the core cause of the exceptional case finding was that, after a …
Here's a scenario that can happen in a patent case: The patentee serves an opening expert report alleging infringement. Your expert responds, detailing every reason why the design documents show non-infringment. The patentee then serves a reply expert report, citing new documents that it says show infringement.
What do you do now? There are at least four answers: (1) move for leave to serve a sur-reply report to address the new docs; (2) just serve a sur-reply report, without leave, and fight the inevitable motion to strike; (3) skip the report but have the expert be prepared to discuss the new papers at deposition, and hope plaintiff asks; or (4) just plan to address the new …
Still thinking about my plums! It's the season baby!Svitlana, Unsplash
Its easy to forget about prejudgment interest. You only need to address after the trial is over when you're putting together the final judgment, but the seeds of victory or defeat are oft planted in the fertile loam of pretrial submissions and expert reports.
Case in point, Judge Williams' decision this week in Board of Regents, the Univ. of Texas Sys. v. Boston Sci. Corp., C.A. No. 18-392-GBW (D. Del. June 5, 2024) (Mem. Op.). At trial, the plaintiff prevailed on all counts and the Jury awarded a verdict of $42,000,000.
Here's the form:
Court
You'll notice the verdict says nothing about whether the royalty …
In DivX, LLC v. Realtek Semiconductor Corp., C.A. No. 20-1202-JLH (D. Del.), the parties disputed whether the case should be dismissed with or without prejudice after the plaintiff moved to dismiss its own case.
The defendant responded, opposing dismissal without prejudice and arguing that a with-prejudice dismissal was warranted under a four-factor test used in previous cases (which focuses mainly on effort and expense of the present and potential future litigation, progress of the present litigation, and diligence in moving to dismiss). Id., D.I. 74 at 9.
The defendant argued that plaintiff had filed an ITC action against it, resulting in millions of dollars in fees. Id. at 12.
Rarely does a motion go unopposed. The more common response to all but the most quotidian of requests is an offer to duel.
I've been waiting to use this picture, which I think is meant to be taken seriouslyChris De Lima, Unsplash
Thus, I usually count even the most grudging and proviso-laden non-opposition as a win. Which, sometimes, works out.
This brings us to the case of TOT Power Control, S.L. v. LG Elecs. Inc., C.A. No. 21-1304-MN-SRF (D. Del. May 16, 2024). The plaintiff there had listed several formal technical employees as having discoverable information on their initial disclosures. As discovery progressed, however, five of these persons who resided overseas in Spain and Denmark stated …
Welcom to sunny Wilmington, DE, home of the nation's most-covered criminal trial (of this week)Andrew Russell, CC BY 2.0
On Friday, after we wrote our post about it, the Court granted the Press Coalition's motion to intervene and adjusted the voir dire procedures for today's jury selection in the Hunter Biden case, United States v. Robert Hunter Biden, C.A. No. 23-61 (D. Del.).
The Court modified the procedures so that the jury pool will be moved out of the room to make space for the press to attend in person during the …
Heads up! As the Court described in a public notice last week, the Hunter Biden criminal trial starts on Monday 6/3.
Just reading the notice, you can tell that the Court (unsurprisingly) expects quite a lot of people to be there. It is setting up the 3rd floor jury assembly room as an overflow room, and is not permitting reporters in the courtroom during jury selection:
Members of the public and media may not be present in the courtroom for jury selection but may listen to those proceedings from the overflow room (3rd Floor Jury Assembly Room).
Courtroom seating for . . . the portions of the trial other than jury selection will be on a …
The Court has developed many methods for curtailing the tendency of litigants to file and argue implausibly large numbers of SJ and Daubert motions. The first, begun long ago when mankind was yet to know fire and all creatures lived in harmony, was page limits. Later, Judge Connolly pioneered the practice of having parties rank their motions. Still further methods take seed, blossom, and wither, each day.
In you can't tell, I've been spending a lot of time in my garden this month. I just got my first plum! (not these).Svitlana, Unsplash
This last month Judge Burke debuted a new approach—"requesting that the parties select one motion each to argue at the hearing.
The parties in the case in question each filed SJ and Daubert motions under the usual page limits. After briefing was complete, Judge Burke issued an order requesting the parties select 80 pages of briefing to actually be argued at the hearing:
The Court needs the parties' help to narrow the issues as to which argument will be presented on July 2. By no later than May 20, 2024, the parties shall meet and confer and file a joint letter with the Court advising of their position (it would be ideal if this were a joint position), as to which of (or which portions of) the 5 pending motions the parties wish to present argument on at the July 2 hearing (and which the Court can simply resolve on the papers). For guidance, the Court can productively prepare for and hear argument on no more than about 80 pages of briefing. After hearing back from the parties, the Court will then advise on which motions/issues it will hear argument on during the July 2 hearing.
The Nielsen Company (US), LLC v. TVision Insights, Inc., C.A. No.22-57-CJB. D.I. 219 (D. Del. Apr. 29, 2024).
The parties ultimately did submit a joint letter selecting the 80 pages of briefing. Judge Burke then issued a follow-up order requiring further narrowing for the hearing:
[T]he Court has further reflected on the issue, in part having after having recently overseen another similar hearing regarding such motions. As a result, it has become clear to the Court that for a hearing on summary judgment and/or Daubert motions to be most fruitful and focused, it makes best sense to require the parties to each select one motion that they will offer argument on to the Court. This will allow for a detailed and focused argument regarding what the parties believe to be their most important motion, and will allow the Court to meaningfully prepare for argument. Therefore, the Court hereby ORDERS that by no later than May 28, 2024, the parties shall submit a joint letter advising the Court of the motion that each respective side selects to be argued at the July 2 hearing.
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