Juror questionnaires are rarely a sure thing. These are questionnaires that jury services sends to jurors called for service. The answers are then provided to the parties shortly before trial. Parties like them because they aid in jury selection, but the Court often raises concerns—although they do go out in some cases.
Judge Hall last week rejected a joint request for a jury questionnaire, noting that it would largely overlap with regular voir dire questions:
ORAL ORDER: Having reviewed the parties' joint letter regarding their request to send out a juror questionnaire (D.I. 522 ), IT IS ORDERED THAT the request is DENIED. The Court does not see a reason to burden the prospective …
If there is one thing that tends to kill discovery motions, it's delay. If you want to have the best chance of winning your motion to compel, supplement, strike, etc., you need to bring the motion early. Don't wait.
We got a good example of that last week in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH, D.I. 163 (D. Del. Apr. 9, 2024). There, a defendant sought to compel a deposition of an inventor before a Markman hearing, arguing that the testimony was important for claim construction. The Court denied the request, in part because they waited too long:
ORAL ORDER: The Court has reviewed the discovery …
On Wednesday, Judge Fallon issued a memorandum order in Kurt Morales II v. Sunpath Ltd., C.A. No. 20-1376-JLH-SRF (D. Del.), a class action suit alleging that various defendants are telemarketers who made robocalls violating the Telephone Consumer Protection Act.
More than three years into the litigation, counsel for one of the defendants, Sunpath Ltd., withdrew, and the Court ordered Sunpath Ltd. to retain new counsel. D.I. 232. When it failed to do so, the clerk entered a default against it. Id.
Plaintiff argued that Sunpath defaulted specifically to avoid having to face discovery. D.I. 265 at 1. Plaintiff therefore served a subpoena on Sunpath's e-discovery vendor Everest Discovery, LLC who, unsurprisingly, pushed back. …
Power Integrations, Inc. v. Waverly Licensing LLC, C.A. No. 22-1554-CFC (D. Del), is one of my favorite complaints ever. Waverly -- allegedly one of the Mavexar companies -- sued Power Integrations for infringement in Texas right before Judge Connolly held his first hearing in the Mavexar matters in November of 2022.
In a truly inspired move, Power integrations then filed a DJ complaint in Delaware (its state of incorporation) alleging that "Defendants have engaged in a broad and aggressive campaign to harass and threaten many companies, including Power Integrations, with assertions of patent infringement liability . . . ." Id. at D.I. 1. Notably, they managed to get this complaint on file by the end of November 2022.
The complaint is well worth a read, but the best bit is definitely when they point out that Waverly's official address is actually an empty shelf in a Staples:
In an assignment filed with the U.S. Patent and Trademark Office for the ’246 patent, defendant Array IP LLC identified itself as having the same address that defendant Waverly Licensing LLC lists in the Waverly-PI complaint as its principal place of business (3333 Preston Road, Suite 300, Frisco, Texas 75034). (Id.) However, that address is actually a Staples store . . . Moreover, the specific box number that defendant Waverly occasionally lists in its court filings as its “principal place of business” within that “suite” is an open shelf.
Id. at paragraphs 12-13.
There are pictures and everything, it's really great.
This complaint prompted all of the DJ defendants -- which included Waverly, Mavexar itself, and several others -- to ...
The District of Delaware generally permits parties to file things under seal without a motion to seal, and requires parties to file a redacted version within 7 days. Usually, the Court permits parties to handle redactions without judicial intervention (although notalways).
As we've written aboutrepeatedly, Judge Andrews regularly rejects redacted versions of filings that take the easy way out and simply redact entire exhibits rather than doing line-by-line redactions.
While we were out last month, the Court issued a similar order in a case before Judge Hall:
DEFICIENCY NOTICE by the Court issued re 238 Redacted Document. The redacted filing (D.I. 238) is REJECTED because parts of it are redacted in its …
Most of the judges in the District of Delaware have settled on page limits for summary judgment and Daubert motions in patent cases of 250 total pages: 50 pages opening, 50 pages answering, and 25 pages reply—per side.
The "per side" part is important, and it can have a significant impact on cases with multiple unrelated defendants or defendant groups.
The Court has usually resisted expanding these limits, and in many cases, has instead experimented with ways of reducing the burden on the Court. Judge Noreika, for example, has sometimesrequired parties to seek leave before filing summary judgment motions.
Goodbye, 93-page joint claim construction briefAI-Generated, displayed with permission
Judge Andrews' form scheduling order for patent cases requires a joint claim chart. In that chart, in addition to listing the constructions, the Court requires the parties to explain why the parties are seeking construction of each term:
The Joint Claim Construction Chart should include an explanation of why resolution of the dispute makes a difference.
Judge Andrews added this requirement in early 2023. I haven't seen much activity on his dockets related to it—until last week.
In Belden Canada ULC v. CommScope, Inc., C.A. No. 22-782-RGA (D. Del.), the parties filed a joint claim construction chart. The chart included 21 terms and, each time, the parties …
The text of the District of Delaware Local Rules require non-pro se parties to meet-and-confer on every non-dispositive motion:
RULE 7.1.1. Statement Required to be Filed with Nondispositive Motions.
Except for civil cases involving pro se parties or motions brought by nonparties, every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware …
Look, I get it. We write about redactions alot. Andrew wrote about redactions yesterday. I begged him not to, but he was like "shut up, I do what I want" before threatening me with the broken end of a bottle.
Actual reenactmentAI-Generated, displayed with permission
But alas, I have lived long enough to see myself become the villain of this blog. Judge Andrews issued an opinion the other day that had some guidance on redactions that was too helpful not to share (if a bit disheartening for the budding redactors). Both parties in Regenxbio Inc. f/k/a ReGenX v. Sarepta Therapeutics, Inc., C.A. No. 20-1226, D.I. 249 (D. Del Feb 22, 2024) (Oral Order) filed timely notices of …
In Exeltis USA, Inc. v. Lupin Ltd., C.A. No. 22-434-RGA-SRF (D. Del.), plaintiff asserted infringement of claims from six patents. Back in July, 2023, Judge Andrews ordered the plaintiff to narrow its case to seven asserted claims across all of the patents prior to trial, which is set for Monday, February 26, 2024.
On Tuesday of this week, the Court issued its ruling on several pre-trial claim construction disputes. Plaintiff lost some of the disputes and, apparently, decided that it needed to stipulate to non-infringement of that claim.
With one of its seven claims out of the case, and with less than a week to go before trial, Plaintiff sought leave to re-assert one …
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