Judge Andrews issued an interesting opinion today denying a requested $9 million attorneys' fee award in Acceleration Bay LLC v. Take-Two Interactive Software, C.A. No. 16-455-RGA (D. Del.).
There were a number of facts in defendant's favor, but not quite enough to get over the bar for fees under § 285. The one that most caught my eye was that the Court had previously expressed concerns about counsel's candor—a rare thing for the Court in the District of Delaware to do:
Defendants argue that the impropriety of Plaintiff's litigation conduct-including the lack of candor, forcing relitigation of lost issues, and the pattern of inappropriate conduct in previous cases-further proves that this case …
An embodiment of the claimed "weight-shift controlled personal hydrofoil watercraft"U.S. Patent No. 9,359,044
We don't usually write about claim construction opinions, because they tend to be fact-specific and tough to generalize to other cases.
But there were a few interesting points in a claim construction opinion issued by Judge Andrews on Friday, and I thought it was worth outlining them here:
While the judges are typically somewhat adverse to extrinsic evidence, Judge Andrews askedthe parties to submit letters outlining "textbook[]" style definitions of the a term, "stability," and said that he found the letters helpful. He adopted the construction that "capture[d] the concept of static stability" as set forth in the textbook definitions.
The redacted filings (D.I. 453 , 454 , and 458 ) are REJECTED because parts of them are redacted in their entirety. Absent a compelling reason, supported by a statement under oath by a party, redactions in their entirety are impermissible; redactions must be done so as to redact the least possible amount of the materials submitted. Failure to make a good faith attempt at such redactions may result in sanctions, the most common of which would be simply unsealing the entire filing. Redacting in its entirety a document that contains publicly available materials is prima facie evidence of bad faith. Revised redacted filings are DUE within five business days.
Judge Andrews on Friday denied a fairly typical stipulation extending time for the briefing on a motion to dismiss:
ORAL ORDER: There is a pending motion of a routine nature. Each side is represented by multiple attorneys, at least some of whom on both sides are known to me to be more than competent. Summer schedules and other professional obligations are not a reason to add more than two months to the briefing schedule for this motion. The stipulation (D.I. 15 ) is DENIED. Ordered by Judge Richard G. Andrews on 6/3/2022. (nms) (Entered: 06/03/2022)
Robocast, Inc. v. Netflix, Inc., C.A. No. 22-305-RGA, D.I. 16 (D. Del. June 3, 2022).
I've noticed two similar orders lately as well, denying early-case extensions or stays and citing Federal Rule of Civil Procedure 16(b)(2), both from Chief Magistrate Judge Thynge. First, with regard to a stipulation to extend time to submit a scheduling order:
ORAL ORDER re 18 STIPULATION TO EXTEND TIME to submit a scheduling order to 6/1/2022 filed by IP Power Holdings Limited: . . . By the time of the Rule 16 conference scheduled for 6/6/2022, this matter will have been pending for ...
We wrote back in February of an uncommon Daubert opinion from Judge Andrews where he asked for a hearing with testimony from the expert, and for an additional round of briefing on Daubert.
Judge Andrews' concerns stemmed from an apparent lack of apportionment in the damages analysis—something that often trips up damages experts:
No one would sell the [accused] product without its numerous necessary parts. But it does not follow that the value of each necessary part is the same as the value of the whole. And yet that is what it appears that Dr. Mangum is doing.
After hearing testimony from the expert, however, Judge Andrews today issued an opinion finding that is not …
We don't see too many DTSA cases here (at least in comparison to patent cases), but this one is interesting.
In Peloton Interactive v. iFIT Inc., C.A. No. 20-1535-RGA (D. Del.), a mechanic at defendant iFIT had a childhood friend who was working as a freelance prop man helping shoot some commercials for iFIT competitor Peloton.
According to the Court, the iFIT mechanic found out about his friend's work and, despite allegedly knowing the scripts for the commercials were under an NDA, convinced his friend the prop man to forward him the scripts, which he did (along with a note "Dont [sic] forward or show my name.").
The iFIT mechanic then forwarded the scripts to the hero of this story, an iFIT Vice President of Product Development, referred to in the opinion as "Mr. Willardson." Mr. Willardson immediately shut down the idea of using the competitor's information and involved in-house counsel:
On October 26, 2020, after returning to the office, Mr. Chambers printed a copy of the Scripts from his email. . . . After reading a portion of the Scripts, Mr. Chambers brought the document to his immediate supervisor, Mr. Willardson, VP of Product Development. . . . Mr. Willardson quickly flipped through the Scripts and told Mr. Chambers not to share the document with anyone. . . . Mr. Willardson then put the Scripts in a sealed envelope and gave the envelope to iFIT's in-house counsel. . . . Mr. Chambers and Mr. Willardson have both testified that they never disseminated the Scripts.
JNOV's (JMOL's after a jury verdict for lawyers of a newer vintage) are always longshots. To prevail on such a motion "a party must show that the jury’s findings, presumed or express, are not supported by substantial evidence or, if they were, that the legal conclusion(s) implied by the jury’s verdict cannot in law be supported by those findings." Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998) (cleaned up). It's always noteworthy (or so we bloggers tell ourselves) when one succeeds.
This is especially true in NexStep, Inc. v. Comcast Cable Communications, LLC, C.A. No. 19-1031-RGA, D.I. 371 ( …
Judge Andrews resolved a discovery dispute yesterday where plaintiff challenged defendant's "relevancy redactions." According to the plaintiff:
[Defendant] DuBois routinely applied, and refuses to remove, so-called relevancy redactions to the few documents it has produced in this case. . . . The DuBois redactions that [plaintiff] Ecolab has challenged are not addressed to preserving any privilege and are improper, particularly in view of the protective order that serves to safeguard DuBois’ confidential information in this case.
Judge Andrews seems to have shot this down quickly, holding that the defendant cannot redact for reasons other than privilege:
ORDER: By no later than May 30, 2022, Defendant shall produce to Plaintiffs all documents redacted for reasons other than preservation of …
I came across an interesting discovery dispute transcript that hit the docket last week in Peloton Interactive, Inc. v. Echelon Fitness, LLC, C.A. No. 19-1903-RGA (D. Del.).
Plaintiff Peloton had asserted the patents-in-suit against another defendant in another action in E.D. Tex., and ultimately settled that casein part by buying the defendant's business for $24.5m.
The defendant here, Echelon, asked plaintiff to produce various communications related to that previous litigation and sale, including communications among counsel.
Plaintiff initially refused, until defendant brought a motion to compel; then plaintiff agreed in exchange for withdrawal the motion. But plaintiff never produced the documents.
Defendant moved again, noting the prior history. The Court ordered production: …
It's great that we are getting to point of having frequent jury trials again here in Delaware. Trial is the most dynamic and interesting part of the litigation process. It's where you get to address classic questions like "Can we get this admitted into evidence even though it's not on our exhibit list?", "Where was THAT in his expert report?", and "Can we show the jury this video of the other side's expert saying 'I don't know' for ten minutes straight?"
Luckily, on that last question, we now have some precedent. According to Judge Andrews last week:
I agree with First Quality that Dr. Mitton's availability does not make the deposition inadmissible. But I nevertheless …
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