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New This Week (April 16, 2021)

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Scheduling/Case Management 

 

District of Connecticut (New Haven)

District Judge Vanessa L. Bryant

National Products Inc. v. Scanstrut Inc. et al. – The U.S. District Court for the District of Connecticut in New Haven granted defendants’ Motion for Extension of Time. The Court agreed with the plaintiff that the defendants' choice to change counsel does not constitute good cause for an extension, however it found “that exigent circumstances caused by the COVID-19 pandemic constitute good cause for modification of the scheduling order.” On March 29, 2021, the Court issued an Order denying defendant’s motion seeking a 45-day extension of time for the deadlines for the Markman briefing as moot because briefing was complete.  The Court noted that the motion did not seek an extension of discovery and it is not a forgone conclusion that discovery cannot be completed by the August 2, 2021 deadline. The Court further indicated that “[m]oving forward, given the current state of the pandemic and the availability of vaccinations, the Court will be disinclined to grant further extensions on the blanket assertion that the pandemic is inhibiting a party’s efforts to comply with existing litigation deadlines.” (Case No. 3:19-cv-01322; April 8, 2020 and March 29, 2021).

Middle District of Florida (Tampa)

District Judge Virginia M. Hernandez Covington

Delta T, LLC v. Dan's Fan City, Inc. – The U.S. District Court for the Middle District of Florida in Tampa granted in part plaintiff’s unopposed motion for a 90-day continuance. While the court “understands the challenges presented by the COVID-19 pandemic,” it did not find a 90-day continuance was warranted, noting that the case had been pending for “well over a year” with more than three (3) months left for factual discovery. “Nevertheless, out of an abundance of fairness,” the court granted a 60-day extension of the case management and scheduling order and further indicated that it will be “disinclined to grant any further extensions.” On April 7, 2021, the Court granted the parties Joint Stipulation And Motion To Allow For Zoom Conference, ordering that the scheduled meeting may be held by video Zoom, “[i]n view of COVID concerns and multistate travel, [and] the parties . . . [stipulated request] to allow a Zoom conference between counsel instead.” (Case No. 8:19-cv-01731; April 9, 2020 and April 7, 2021).

Eastern District of Virginia (Norfolk)

Chief District Judge Mark S. Davis

Biedermann Technologies GmbH & Co. KG v. K2M, Inc. et al. – The U.S. District Court for the Eastern District of Virginia’s Norfolk Division issued an Opinion and Order ruling on the parties’ cross-motions for summary judgment. As part of its analysis of plaintiff’s motion regarding contractual estoppel, the Court stated that the critical fact for the purposes of resolving the motion is that defendant was acquired in November 2018, just days after the original complaint was served, and is now a subsidiary of the new parent entity. The Court noted that “the COVID-19 pandemic has significantly delayed the timeline of this case, as civil jury trials have been suspended in this District since March of last year and the parties have elected not to proceed to a bench trial”, however, while the facts regarding the degree of integration between the entities that existed during 2019 and early 2020 may have materially changed with the passage of time, any such change does not affect the outcome of the summary judgment motion. (Case No. 2:18-cv-00585; March 25, 2021).

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Discovery

Central District of California (Southern Division—Santa Ana)

Magistrate Judge John D. Early

Linksmart Wireless Technology, LLC v. Gogo Inc. et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana denied plaintiff’s Motion To Compel Deposition of defendant’s expert. The parties had not been able to agree to a date before the close of expert discovery for the deposition and agreed he would sit for deposition on January 22, 2021. The expert contracted a “severe case” of COVID-19 and developed pneumonia and could not sit for the deposition and would require a one month extension of the expert discovery schedule. The Court found plaintiff did not establish that it was diligent, including not timely notifying the Court the deposition had been scheduled after the discovery cut-off, with full knowledge that it was “out of time”, and it had a second opportunity prior to the expert discovery cut-off to seek relief from the Court after being notified on January 12, 2021 that the deposition could not proceed. (Case No. 8:18-cv-00654, case presiding before District Judge John A. Kronstadt; March 25, 2021).

 

 

District of Delaware (Wilmington)

District Judge Richard G. Andrews

Gracenote, Inc. v. Free Stream Media Corp. d/b/a Samba TV – The U.S. District Court for the District of Delaware in Wilmington granted the parties’ joint stipulation to stay the case for 90 days and to extend all deadlines in the Scheduling Order by approximately 90 days. The parties requested the stay because of the impact that the COVID-19 pandemic has had on the ability of plaintiff to access and review defendant’s source code and the unlikelihood of accessibility occurring in the near future. Specifically,

  • (1) reviewing the source code requires in-person inspection at a secure terminal pursuant to the parties’ Source Code Access Agreement;
  • (2) the source code is located in California which is subject to Executive Order N-33-20 requiring all California residents to stay at home;
  • (3) plaintiff’s counsel are located in Illinois and New York, both of which are subject to stay-at-home orders; and
  • (4) both plaintiff’s technical experts capable of conducting the in-person review reside in foreign countries, one of whom is from the Netherlands and barred from entry into the U.S. pursuant to the entry ban on travelers from Europe, and one of whom is subject to a substantial risk that he would be prohibited from returning to his home in Chile if he traveled to the U.S.

The Court granted a Joint Stipulation to further stay the case for an additional 80 days and to extend all deadlines in the Scheduling Order by approximately 80 days. The extension was required due to the lack of access to defendant’s source code because of the on-going effects of the COVID-19 pandemic, including “the current spike in the number of COVID-19 cases in California, where the source code can be made available,” and the inability of the technical experts to travel from their international locations to the code. On September 22, 2020, the Court granted the parties Joint Stipulation To Stay The Case For 95 Days sought by the parties “because the conditions imposed by the COVID-19 pandemic continue to make review of [defendant’s] source code impossible.” The Markman hearing is now set for June 30, 2021, the pretrial conference is set for September 2, 2022 and the jury trial is set for September 19, 2022 at 9:00 a.m. On December 29, 2020, the Court granted the parties Joint Stipulation To Stay The Case For 90 Days requesting another extension because the conditions imposed by the COVID-19 pandemic continue to make review of defendant’s source code impossible, and plaintiff’s technical experts reside in foreign countries from which travel to the United States would be difficult or impossible. The Markman hearing is now set for September 29, 2021, the pretrial conference is set for December 2, 2022 and the jury trial is set for December12, 2022 at 9:30 a.m. On March 31, 2021, the Court granted the parties Joint Stipulation To Stay The Case For 70 Days due the COVID-19 pandemic, because plaintiff still has not been able to access defendant’s source code and travel for its technical expert would be difficult or impossible from Chile, which “despite its success in distributing COVID vaccines, is imposing new lockdowns due to a recent spike in infections.” The Markman hearing is now set for December 14, 2021, the pretrial conference is set for February 10, 2023 and the jury trial is set for February 21, 2023. (Case No. 1:18-cv-01608; April 14, 2020, July 15, 2020, September 22, 2020, December 29, 2020 and March 31, 2021).

District Judge Maryellen Noreika

Aqua Connect, Inc. et al v. TeamViewer US, LLC – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties Joint Statement Regarding European Depositions, providing that plaintiff may request a written deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31 due to the COVID-19 pandemic. The Court further instructed the parties to continue to monitor the quarantine and travel restrictions over the next 30 days and provide a status report to the Court no later than November 20, 2020.  In addition, the Court ruled that “[o]btaining a deposition under Rule 31 will [not] be grounds for Defendants to oppose another deposition live should conducting a deposition live become feasible.” On December 2, 2020, the Court entered the parties Stipulation And Order To Extend Time, to move the current schedule back approximately 90 days to accommodate the discovery needed and subsequent deadlines. The request was made because the COVID-19 pandemic “has continued to impact the ability of the parties to undertake in-person depositions and otherwise meet the current deadlines . . . [and] counsel for the parties are continuing to consider how to move the case forward during this period of continued closures and international travel limitations.” The jury trial date has been reset from September 13, 2021 to January 31, 2022.  On March 22, 2021, the Court entered the parties Stipulation and Order To Extend Time to again move the current schedule back approximately 90 days to accommodate discovery and subsequent deadlines, due to the COVID-19 pandemic, because the parties were not able to undertake in-person depositions and the U.S Consulate General in Frankfurt was unable to schedule depositions. The jury trial date was reset to May 9, 2022. (Case No. 1:18-cv-01572; October 21, 2020, December 2, 2020 and March 22, 2021).

Sentient Sensors, LLC v. Cypress Semiconductor Corporation – The U.S. District Court for the District of Delaware issued an Order providing a Source Code Addendum To Protective Order, in light of the COVID-19 pandemic, with agreed upon “additional terms governing review of software code, firmware code, and circuit layout files.” The Addendum provides for source code inspection using a remote review computer, which shall be sent to receiving party’s outside counsel or directly to a different authorized receiving party representative. The terms in the Addendum “shall remain in effect only so long as COVID-19 restrictions are in effect at the locations of respective relevant parties, such as the location of the parties’ respective counsel and source code review consultants and experts.” Once the COVID-19 pandemic restrictions are lifted, the producing party may, at its sole discretion, provide source code pursuant to the terms of the Addendum or pursuant to the relevant provisions of the Protective Order. (Case No. 1:19-cv-01868; April 6, 2021).

Northern District of Illinois (Eastern Division—Chicago)

Magistrate Judge Susan E. Cox

Beijing Choice Electronic Tech. Co., Ltd. v. Contec Medical Systems USA, Inc., et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago granted-in-part plaintiff’s motion to compel multiple requests for discovery and granted plaintiff’s motion for leave to file its reply brief under seal. Though neither party asserted the impacts of the COVID-19 pandemic as a basis for its arguments, in multiple places throughout the 31-page Opinion and Order, the court expressed its expectation that “the parties [] work together to account for and accommodate any disruptions, restrictions, and delays that may be caused by the ongoing global coronavirus pandemic.” It is worth noting, however, that the deadline for completion of discovery was extended in this case by 49-days from May 11, 2020 to June 29, 2020, pursuant to the District Court’s Amended General Order 20-0012 and Second Amended General Order 20-0012 regarding the coronavirus public emergency. The Court granted the parties' Joint Motion To Extend Discovery Due To Pandemic-Related Restrictions On Travel From China, ruling that fact discovery closes on August 26, 2020. On October 22, 2020, the Court denied plaintiff’s Motion to compel defendant to comply with court ordered depositions, instead extending the fact discovery deadline to March 31, 2021 to allow additional time to complete the previously ordered depositions. The Court noted that defendants’ company policy forbids travel outside mainland China due to the COVID−19 pandemic and Chinese Law prohibits depositions by remote means. The Court indicated that it believes defendants' company policy “is prudent in light of the global pandemic and will not order employees to travel to Macau in contravention of those policies at this time.” On March 26, 2021, the Court granted the parties request for an additional 90 days to complete depositions finding that the ongoing COVID-19 pandemic constituted good cause for the extension. The Court found that “the circumstances preventing the depositions from taking place 5 months ago have not materially changed, and the parties have been unable to take depositions of witnesses residing in China.” (Case No. 1:18-cv-00825, presiding before District Judge Franklin U. Valderrama; April 8, 2020, August 3, 2020, October 22, 2020 and March 26, 2021).

 

Western District of Texas (Waco)

District Judge Alan D. Albright

TruSun Technologies, LLC et al v. Eaton Corporation et al. – The U.S. District Court for the Western District of Texas in Waco issued a Request For International Judicial Assistance (Letter Rogatory) To The Superior Court of Justice in Ontario to summon a witness, who is a resident of Toronto, Ontario, to produce documents and appear for a deposition. As part of the request, the Court asked that the witness be compelled to attend a deposition on a date prior to July 15, 2021, or as soon thereafter as reasonably possible, “in light of possible delays experienced by the Court and the Recipient due to COVID-19, with counsel for the parties to the Actions electing whether to appear in person, by phone, or by video-conferencing.” (Case No. 6-19-cv-00656; March 22, 2021).

WSOU Investments LLC v. Microsoft Corporation – The U.S. District Court for the Western District of Texas in Waco entered a stipulated Protective Order to address disclosure of trade secrets, confidential business information, other proprietary information, or information implicating privacy considerations, including source code. "In view of the current logistical circumstances related to the COVID-19 pandemic," the Order provided that the receiving party will receive 3 copies of printed source code material. (Case No. 6:20-cv-00456; March 30, 2021).

District of Utah (Central Division—Salt Lake City)

Senior District Judge Clark Waddoups

Polar Electro Oy v. Suunto Oy et al. – The U.S. District Court for the District of Utah’s Central Division in Salt Lake City granted plaintiff’s Motion For Leave to Supplement a Technical Expert Report, finding that the supplementation was appropriate.  As part of its timeliness analysis, the Court found that the report was not untimely based on the totality of the circumstances including that the expert evaluated the report submitted on November 6, 2020, designed and conducted a test, and wrote a supplemental report by January 6, 2021 “despite his employment as a professor, COVID conditions, and intervening holidays for Thanksgiving, Christmas, and the New Year.”  (Case No. 1:17-cv-00139; April 9, 2021).

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Patent Specific Hearings/Motions

Northern District of Illinois (Eastern Division—Chicago)

Magistrate Judge Gabriel A. Fuentes

Ellenby Technologies, Inc. v. FireKing Security Group et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago issued a Memorandum Opinion And Order denying defendants' motion to reconsider an earlier order denying without prejudice defendants' motion to stay pending their petition for inter partes review. As part of its analysis, the Court found that discovery should proceed given plaintiff’s interest in moving the matter closer to a determination of patent rights, despite the possibility that IPR may be instituted in August 2021, and “even though a trial date has yet to be set during pandemic conditions in which civil trial dates are commonly not set as promptly as they were before the pandemic.”  (Case No. 1:20-cv-02253, presiding before District Judge Steven C. Seeger; April 13, 2021).

District of New Jersey (Trenton)

District Judge Brian R. Martinotti

Oanda Corporation v. GAIN Capital Holdings, Inc. et al. – The U.S. District Court for the District of New Jersey in Trenton denied defendant’s Motion to Stay the Litigation pending completion of the CBM proceedings that were initially denied institution by the PTO, finding “[t]he fact that the PTAB has issued its decision has a very important impact on the balance of factors” and that the four factors on balance disfavor a stay. The Court acknowledged that the PTAB’s denial to institute IPR/CBM does not necessarily moot a motion to stay pending resolution of the IPR/CBM, if a request for rehearing may be filed. As part of its analysis, the Court also considered the impact of the COVID-19 pandemic on the timing factor which the Court found favored a stay. (Case No. 3:20-cv-05784; March 30, 2021).

Western District of Texas (Midland-Odessa)

District Judge Alan D. Albright

True Chemical Solutions, LLC v. Performance Chemical Company The U.S. District Court for the Western District of Texas in Midland-Odessa granted defendant’s Emergency Motion To Transfer Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas in Midland to the Waco Division, finding that three factors – cost of attendance, other practical problems and administrative difficulties from court congestion -- weigh in favor of transfer and only the factor of localized interest weighed against transfer, with all other factors being neutral. In finding that the “other practical problems” factor weighs in favor of transfer, the Court noted that trial in Waco is “likely to be safer”, primarily because nearly every third-party witness is farther from Midland than Waco requiring travel over “a greater distance in a time where such travel remains highly discouraged”, and trial will take place sooner than one in Midland. The Court agreed that a trial is necessarily more difficult to schedule in Midland due to competing courthouse calendars, therefore keeping trial in Midland would thus doubtless involve further delay in a case that has already seen no less than six trial postponements, including most recently when plaintiff obtained a continuance of trial based on its lead counsel’s COVID-19 diagnosis. The case was set for trial in the Waco Division on March 29, 2021. On March 26, 2021, the Court issued an Order cancelling the jury trial until further order of the court in light of plaintiff’s motions for sanctions against defendant based on discovery abuse and spoliation of evidence.  (Case No. 7:18-cv-00078; March 8, 2021 and March 26, 2021).

Western District of Texas (Waco)

District Judge Alan D. Albright

The California Institute of Technology v. Dell Technologies Inc. et al. The U.S. District Court for the Western District of Texas in Waco denied, without prejudice, defendants’ Opposed Motion For Intra-district Transfer Of Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas in Waco to the Austin Division. Defendant argued that although the Austin is not currently holding trials due to the COVID-19 pandemic, it should be open before trial because “the Austin courthouse’s closure is scheduled only until April 30, 2021, vaccinations are expected to be widely available in Texas this spring, and this Court has continued to set trial dates in Austin since the pandemic.” Defendants were instructed to re-file the motion “as trial approaches so the Court can evaluate if transfer is proper under §1404 and whether the Austin Courthouse will be open in time for this trial.” (Case No. 6:20-cv-01042; April 5, 2021).

Technologies LLC v. Semiconductor Manufacturing International Corporation et al. The U.S. District Court for the Western District of Texas in Waco denied, without prejudice, defendants’ Motion For Intra-district Transfer Of Venue under 28 U.S.C.§ 1404(a) from the Western District of Texas in Waco to the Austin Division.  Defendants were instructed to re-file the motion “as trial approaches so the Court can evaluate if transfer is proper under §1404 and whether the Austin Courthouse will be open in time for this trial.” (Case No. 6:19-cv-00719; March 29, 2021).

KOSS Corporation v. Skullcandy, Inc. The U.S. District Court for the Western District of Texas in Waco granted defendants’ Motion To Dismiss For Improper Venue under Rule 12(b)(3), finding that plaintiff failed to establish that venue is proper in the District because it cannot show that the defendant resides or has a regular and established place of business in Texas. As part of its analysis, the Court found that plaintiff did not establish that defendant has a regular and established place of business in the District through employees working from home, because although defendant did have employees who worked from home during the COVID-19 pandemic, none of its employees that work from home live in the state of Texas. (Case No. 6:20-cv-00664; March 31, 2021).

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Mediation/Settlement Conferences

District of Minnesota (St. Paul)

Magistrate Judge Tony N. Leung

Wilson, et al. v. Corning, Inc. – “In recognition of the current efforts locally and nationally to protect persons from unnecessary potential exposure to COVID-19,” the U.S. District Court for the District of Minnesota in St. Paul sua sponte ordered the parties’ in-person settlement conference scheduled for March 25, 2020, be conducted remotely. Due to the ongoing COVID-19 pandemic, the Court issued a Notice on January 13, 2021 stating that the settlement conference, currently set for February 10, 2021, will not take place in person.  Instead, the settlement conference “will take place by alternative means, such as participation by phone or video conference.” The Court further indicated that a party may request the conference be rescheduled if the party is not able “to participate by alternative means or have health concerns about such participation.” In an Amended Order For Settlement Conference, the conference was rest to be held on April 21, 2021 at 10:00 a.m. According to the Order each counsel who will actually try the case and each party, with settlement authority, must be physically present in the courthouse and “electronic availability shall not be deemed to be in compliance with [the] Order.” On March 19, 2021, the Court issued an Order indicating that due the COVID-19 pandemic the settlement conference will not take place in person but rather by alternative means. (Case No. 0:13-cv-00210, presiding before Senior District Judge Donovan W. Frank; March 17, 2020, January 13, 2021, January 21, 2021 and March 19, 2021).

Trial

Southern District of California (San Diego)

District Judge Cathy Ann Bencivengo

Finjan, Inc. v. ESET, LLC, et al. – “Based upon the current state of extraordinary circumstances due to the Coronavirus/COVID-19 Pandemic,” the U.S. District Court for the Southern District of California in San Diego declared a mistrial, with the agreement of counsel, after suspending the jury trial proceedings and excusing the jury for the day. On March 23, 2021, the Court granted defendant’s motion for summary judgment of invalidity for indefiniteness after permitting defendant to renew its motion in consideration of testimony that was heard from plaintiff’s expert on the issue during three days of a jury trial that commenced on March 10, 2020 but was vacated and declared a mistrial due to the COVID-19 pandemic and the issuance of the State of California’s stay-home order. Although the trial was terminated early due to the pandemic, the expert’s testimony was completed, and the Court indicated that “a subsequent trial is not an opportunity for [the expert] to change his opinions or supplement them with support he did not provide on the record at the first trial.” The Court noted that the district’s “continuing moratorium on civil jury trials and backlog of criminal jury trials currently precludes scheduling a new trial in this matter.” (Case No. 3:17-cv-00183; March 16, 2020 and March 23, 2021).

District of Delaware (Wilmington)

District Judge Maryellen Noreika

TriMed Inc. v. Arthrex Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Order after Pretrial Conference with respect to a bench trial set to begin on September 14, 2020 at 9:00 a.m. Among the items covered in the Order, the Court ruled that “[e]ach side may have no more than three (3) attorneys and one (1) support person in the courtroom at any given time, and only two (2) persons are permitted at counsel table per side at any given time .  . . [and in] its discretion, the Court may modify these limitations at any time or impose additional restrictions to ensure the safety of court personnel and all persons attending trial.” In addition, it was ordered that all persons in the courtroom must wear a mask at all times, unless excused by the Court, and “the mask must be worn properly (i.e., covering the person’s nose and mouth).” On March 29, 2021, the Court issued a Memorandum Opinion revising the Court’s previous construction of a disputed claim term.  As part of its analysis, the Court referred to a demonstrative that it created during the three-day bench trial in “an effort to guide and focus a discussion that was being held remotely during the COVID-19 pandemic.” After re-examining the intrinsic evidence the Court revised its construction of the disputed term in a way that the parties agreed requires a finding of non-infringement and dismissal of the invalidity counterclaim as moot.  (Case No. 1:18-cv-00666; September 1, 2020 and March 29, 2021).

 

Northern District Of Illinois (Chicago)

District Judge Matthew F. Kennelly

NeuroGrafix, et al. v. Brainlab, Inc., et al. – The U.S. District Court for the Northern District of Illinois in Chicago sua sponte vacated the June 1, 2020 trial date and the May 19, 2020 final pretrial conference. The Court advised the parties that, upon resumption of regular court proceedings (possibly in early June), “the district will be prioritizing criminal jury trials involving defendants in custody, and then (likely) criminal trials involving defendants not in custody that had to be moved due to the suspension of court proceedings, with civil jury trials getting a lower priority in the near term.” The Court further indicated that if it had to predict, the trial date likely will have to be reset to late summer at the very earliest.  However, it was noted that “there may be significantly greater leeway regarding an earlier trial date were the parties to agree to a bench trial, though the Court understands that each side has a right to a jury trial and is perfectly fine with either a jury trial or a bench trial.” In a previous order on April 17, 2020, terminating plaintiffs' “emergency” motion for clarification stemming from the court's earlier invocation of the so-called advocate-witness rule, the Court rejected an apparent contention (among other grounds) that the coronavirus pandemic is an extraordinary circumstance that should lead the Court to set aside the advocate-witness rule for purposes of trial. In that earlier order the Court found that “[t]he health-related considerations that plaintiffs identify are not a basis to overturn this long-established rule of professional conduct, which has a direct bearing on the opposing party's right to have a fair trial, and in any event those concerns can be dealt with by other means.” In a September 4, 2020 Minute entry, the Court set the pretrial conference for October 23, 2020 to be held via video and directed the parties to advise the Court in writing by September 18, 2020 whether the case will proceed by jury trial or bench trial. During a status hearing held on October 8, 2020, the Court indicated that the jury trial will likely begin on November 3, 2020. The parties were ordered to meet in person on October 9, 2020 in the courtroom, with the Court indicating that attendees must wear masks, regarding the list of witnesses that will be testifying at the trial and if the testimony will be in person, by video, or by deposition. The parties were further directed to provide a complete and comprehensive list at the start of the trial logistics meeting being held the same day because the Court needed the information to plan for trial during the pandemic. After receiving an “utterly incomprehensible and partially illegible” witness list submission, the parties were directed to provide “for planning purposes” a legible list identifying for each side: (1) the witnesses it intends to call; (2) the city and state where the witness resides; (3) whether the witness's testimony will be presented in person, by remote video, or by deposition; and (4) any objections by the other side to the calling of the witness (without responses). The jury trial began on November 3, 2020, however a mistrial was granted on November 4, 2020 upon plaintiff's oral motion for the reasons stated on the record. The remaining jury trial dates were vacated and the jury trial was continued until March 1, 2021 at 9:45 a.m. On March 14, 2021, the Court vacated the current jury trial date of April 26, 2021 and reset the trial date to May 3, 2021 at 9:30 a.m. (CDT), due to a conflict with a scheduled trial before the Court in a criminal case. The Court further indicate that “[p]rospective jurors, trial counsel, and witnesses who will be present in court for more than two days will be required to report two business days before the start date of the trial for coronavirus testing and will be subject to retesting at three−to−four−day intervals during the trial depending on its length.” (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020, November 4, 2020 and March 14, 2021).

District of New Jersey (Trenton)

District Judge Michael A. Shipp

Amgen, Inc. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark issued a Text Order indicating the bench trial currently scheduled to commence June 14, 2021 shall be entirely remote, pursuant to the Court's Phase III Protocol, which provides that “bench trials shall be conducted via Zoom where possible.” (Case No. 3:18-cv-11026; March 23, 2021).

Eastern District of Texas (Marshall Division)

 

Magistrate Judge Roy S. Payne

Team Worldwide Corporation v. Academy, Ltd. d/b/a Academy Sports & Outdoors – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted in part the parties Joint Motion for Continuance seeking a 60-day continuance of the trial due to the COVID-19 pandemic. Among the reasons for the request, the parties expressed serious concern about the ongoing risk of COVID-19 infection and very few of the attorneys, staff, and witnesses are vaccinated, putting the majority of the trial teams at risk of infection from the travel necessary for both the pretrial conference and the trial. In addition, plaintiff noted that “the quarantine and testing requirements of all of the various states involved for [its] trial team – California, District of Columbia, Maryland, Texas, and Virginia – significantly complicate the ability of the trial team to travel at all for pretrial and trial at the current time . . . [and its] principal fact witness must travel from Taiwan and may face additional testing and quarantine requirements beyond that of the states involved.” The Court indicated it is prepared to continue the trial to the May jury term in order to facilitate the mediation and other issues raised in the motion, but that it was not prepared to grant a 60-day continuance. The pretrial conference currently scheduled for March 18, 2021 was continued to be reset during a telephone conference to be held on March 18, 2021. The Court issued an Order on March 16, 2021, setting jury selection for 9:00 a.m. on Friday, April 30, 2021. (Case No. 2:19-cv-00092, presiding before Chief District Judge J. Rodney Gilstrap; March 13, 2021 and March 16, 2021).

Eastern District of Texas (Texarkana Division)

District Judge Robert W. Schroeder, III

National Oilwell Varco, LP v. Auto-Dril, Inc. – The U.S. District Court for the Eastern District of Texas’s Texarkana Division denied Plaintiff’s Motion to Bifurcate, refusing to bifurcate the exemplary damages phase of trial from the liability and compensatory damages phase over concern of the potential prejudice from the jury hearing about plaintiff’s size compared to that of defendant. The Court found that bifurcation is not warranted because it would “not provide greater convenience for the Court or parties, particularly in light of the ongoing COVID-19 pandemic, enable the avoidance of prejudice, nor will it expedite and economize the trial.” (Case No. 5:15-cv-00027; April 8, 2021). 

Western District of Texas (Austin)

District Judge Alan D. Albright

ESW Holdings, Inc. v. Roku, Inc. – The U.S. District Court for the Western District of Texas in Waco held a pretrial conference and issued an Order regarding trial procedure.  The Court indicated that it will seat 6 jurors and will allow 8 persons per side in the courtroom. In response to a request to issue a COVID-19 order, the Court said that it will not keep the testing component in the Order. The Court further noted that in a previous trial they had 4 air purifiers which were purchased by each side, stating that “if the parties in this case would like to do that it would be good.” On March 30, 2021, the Court issued an Amended Notice of Trial Procedures setting forth the trial procedures to be employed to “maximize safety and social distancing during trial.” The procedures included COVID-19 safety protocol such as the use of PPE and social distancing by party participants and safety procedures for the jury and other non-party participants, including temperature checks, a questionnaire and social distancing. The procedures also set forth additional proposed safety procedures such as the use of plexi-glass barriers, limits on the number of individuals inside the Courtroom (maximum of 8 party-affiliated trial participants per party), the provision of a live video feed accessible by certain party-affiliated individuals, the use of electronic exhibits with no physical exhibits handed to the jury without court approval and no bench conferences in the presence of the jury during trial.  The Court also issued an Order that the jury be sequestered, in light of the continuing response to the COVID-19 pandemic, from the time they report to the jury room each day until released by the Court at the end of each day. (Case No. 1-19-cv-00044; March 29, 2021, March 30, 2021 and April 1, 2021). 

 

Attachments:
WDTX 6:19-cv-00044-161
WDTX 6:19-cv-00044-ADA

VLSI Technology LLC v. Intel Corporation – The U.S. District Court for the Western District of Texas in Waco issued an Order granting in part plaintiff’s Opposed Motion To Transfer Remaining Cases Back To Waco pursuant to 28 U.S.C. § 1404(a), finding that applying the Cragar decision and the Volkswagen II factors to the facts and circumstances presented, the public interest and the convenience of the parties and witnesses will be served by transferring the first action (-255) back to the Waco division, where it was originally filed. The Court incorporated by reference its prior findings regarding the venue issue from the lead matter between the parties that previously preceded to trial starting in February 2021 and reached a jury verdict on March 2, 2021. In that lead matter the Court had “found that the indefinite closure of the Austin courthouse due to COVID-19 was an unanticipatable event that frustrated the purpose of the Court’s prior order transferring the three related cases between the parties from Waco to Austin, and that under the facts and circumstances []presented before the Court, the interests of justice and the convenience of the parties and witnesses favor moving the lead case set for trial in February back to Waco.” The Court further noted that since making those findings in the lead case, the COVID-19 infection rate in Waco has improved materially, while the Austin courthouse closure has been extended and the Austin courthouse remains closed indefinitely for trials. In addition, since the Court transferred the lead case back to Waco, the Court and the parties have invested significant time and resources in developing and implementing COVID-19 safety protocols at the Waco courthouse. (Case No. 1-19-cv-00255; March 28, 2021). 

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