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New This Week (September 18, 2020)

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Scheduling/Case Management 

Southern District of California (San Diego)

Magistrate Judge Linda Lopez

Golden Eye Media USA, Inc. v. Trolley Bags UK Ltd. et al– The U.S. District Court for the Southern District of California in San Diego granted plaintiff’s ex part motion to extend the pre-trial motion filing deadline -- which passed on March 27, 2020—to September 18, 2020, due to excusable neglect. Although the parties had previously agreed to “forego” the submission of summary judgment motions, the plaintiff argued that circumstances had changed since then. In particular, the plaintiff argued that “circumstances were ‘drastically altered’ by the USPTO action invalidating the sole claim of Plaintiff’s ‘912 patent and by the COVID pandemic, which ‘resulted in unanticipated circumstances’ such as the trial date being set almost six months from now.”  The Court found these reasons compelling and that “setting the trial date almost six months out from the final pretrial conference is a generous amount of time that would allow for filing and resolving motions for summary judgment prior to trial, which could lessen the issues to be litigated at trial or lead to settlement.” (Case No. 3:18-cv-02109, presiding before District Judge Roger T. Benitez; September 11, 2020).

Northern District of California (Oakland)

District Judge J. P. Boulee

SendSig, LLC vs. Square, Inc. –The U.S. District Court for the Northern District of Georgia in Atlanta granted defendant’s motion for an oral argument with respect to its Motion To Dismiss. The defendant asked that, in light of the “ongoing public health emergency” created by the COVID-19 pandemic, the Court schedule an oral argument for a date likely to allow in-person attendance by all relevant parties. The Court agreed that an “oral argument, with demonstratives, will simply and narrow the issues before [it].” (Case No. 1:19-cv-03733,; September 5, 2020).

Chief District Judge Phyllis J. Hamilton

Cyntec Company, Ltd. v. Chilisin Electronics Corp. et al. – The U.S. District Court for the Northern District of California in Oakland issued an Order ruling on defendant’s summary judgment motion, defendant’s motion to exclude and a motion to seal.  The Court also set a case management conference to further amend the case schedule for October 16, 2020, further noting “that General Order No. 72-5 prohibits in person jury trials through September 30, 2020, and this court generally will not hold any in-person jury trial while a national public health emergency related to the COVID-19 disease remains ongoing.” (Case No. 4:18-cv-00939; September 8, 2020).

Northern District of Georgia (Atlanta Division)

Chief District Judge Thomas W. Thrash, Jr.

Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte issued on September 1, 2020, the Seventh Amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus, stating that “the adverse conditions giving rise to General Order 20-01 have not sufficiently resolved for the Court to return to normal operations.”  The Fifth Amendment further amends the General Order 20-01 entered on March 16, 2020, the Amended General Order 20-01 entered on March 30, 2020, the Second Amended General Order 20-01 entered on April 30, 2020, the Third Amended General Order 20-01 entered on May 26, 2020, the Fourth Amended General Order 20-01 entered on July 1, 2020, the Fifth Amended General Order 20-01 entered on July 10, 2020 and the Sixth Amended General Order 20-01 entered on August 3, 2020. Specifically, the Seventh Amended General Order 20-01:

  • extends the time periods specified in General Order 20-01 through and including November 1, 2020;
  • orders that no civil or criminal jury trials be held until after November 1, 2020; and
  • grand jury proceedings may continue to he held, and summonses may be issued to prospective jurors for proceedings scheduled to begin after November 1, 2020.

(Case No. 1:12-cv-04123, presiding before District Judge Timothy C. Batten, Sr.; September 1, 2020). 

District of New Jersey (Trenton)

District Judge Brian R. Martinotti

TherapeuticsMD, Inc. v. Teva Pharmaceuticals USA, Inc. et al. – The U.S. District Court for the District of New Jersey in Trenton approved a Joint Stipulation Of Dismissal Of Complaint as to one of the named defendants. It was agreed, as part of the stipulation, that if the parties agree that an employee of the removed defendant is a necessary fact witness, the witness will be made available for deposition in the United States, subject to any governmental travel restrictions due to the COVID-19 global pandemic without the need for service of a subpoena or adherence to the procedures of the Hague Convention or other methods of foreign service/discovery if outside the United States. If the parties disagree as to whether such an employee is a necessary fact witness, and the Court orders that the deposition of that shall be taken, then the employee will be made available for deposition in the United States, subject to any governmental travel restrictions due to the COVID-19 pandemic, pursuant to the Court’s Order without requiring that Plaintiff adhere to the procedures of the Hague Convention or other methods of foreign service/discovery. The Court later approved a second Joint Stipulation Of Dismissal Of Complaint with respect to another defendant that included similar agreements.(Case No. 2:20-cv-03485; June 12, 2020 and September 8, 2020).

Northern District of Ohio (Eastern Division—Cleveland)

Senior District Judge Donald C. Nugent

Parker-Hannifin Corporation v. Laird Technologies, Inc. The U.S. District Court for the Northern District of Ohio’s Eastern Division re-set a Status Conference for September 8, 2020, to be held telephonically because “Chambers has been temporarily restricted due to COVID−19 exposure.” The Court denied plaintiffs’ Motion To Modify Schedule that was seeking to modify and extend discovery for 90 days, arguing in part that the COVID-19 pandemic “has affected its ability to obtain third-party discovery” and “will also hinder the parties’ ability to schedule fact depositions and third-party depositions.” Although denying the motion “at this time”, the Court noted that “the ruling may be re-assessed after Court issues ruling on Claim Construction.” (Case No. 1:17-cv-00988; August 25, 2020 and September 11, 2020).

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, without prejudice, Plaintiff’s Unopposed Motion to Amend Scheduling Order Deadlines which sought approximately a one-month extension of the discovery deadline and the deadline for dispositive motions due to the COVID-19 pandemic. The plaintiff argued that the parties’ ability to meet case deadlines “was severely hindered due to the COVID-19 pandemic,” however the Court noted that “motions such as these require something more than . . . generalized concerns about COVID-19 to establish good cause.” The Court further indicated that plaintiff may be able “to show good cause by providing a more detailed explanation.” (Case No. 5:15-cv-00027; September 10,  2020).

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Discovery

District of New Jersey (Newark)

Magistrate Judge Douglas E. Alpert

Amgen, Inc. v. Sandoz, Inc., et al. – The U.S. District Court for the District of New Jersey in Newark granted the parties’ Stipulation and Proposed Order Regarding Foreign Depositions, which permits corporate representatives under Rule 30(b)(6) as well as fact witnesses under Rule 30(b)(1) to appear for depositions by way of video, in light of travel restrictions resulting from “government orders and health concerns concerning the global COVID-19 pandemic.” On September 2, 2020 the Court entered a similar Stipulation related to another third party once again indicating that any such foreign deposition “will be deemed to be useable to the same extent as if the deposition had been conducted in person in the United States.”  In addition, the Order stated that “to the extent possible, the Court Reporter will be present in the room with the attorney or attorneys taking the deposition.” (Case No. 3:18-cv-11026, presiding before District Judge Michael A. Shipp; August 20, 2020 and September 2, 2020).

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 defendants’ Motion For Relief seeking exemption from the restriction against in-person depositions pursuant to Standing Order Regarding Pretrial Procedures in Civil Cases Assigned to Chief District Judge Rodney Gilstrap During the Present COVID-19 Pandemic. In particular, the defendants were seeking “the flexibility to accommodate the in-person attendance of one or more attorneys at witness depositions, with full remote capabilities for parties and counsel unable to attend in person, or who prefer to conduct or attend the deposition remotely . . . [submitting] that ‘hybrid’ depositions may be conducted safely and will allow for the greatest flexibility in scheduling and completing the necessary depositions.” (Case No. 2:19-cv-00092, presiding before Chief District Judge J. Rodney Gilstrap ; September 11, 2020).

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Patent Specific Hearings/Motions

Northern District of California (San Francisco Division)

District Judge Susan Illston

Varian Medical Systems, Inc. v. ViewRay, Inc. – The U.S. District Court for the Northern District of California’s San Francisco Division denied defendants' motion to stay pending inter partes review (“IPR”), without prejudice to renewal in the event the IPRs are instituted. The Court believed “the better course is to proceed with this case and to allow defendants to renew their request for a stay in the event the PTAB institutes the IPRs”, given that it has set an August 2021 trial date, as well as a pretrial schedule for fact and expert discovery and motion practice. The Court did acknowledge that it was “not unsympathetic to the concerns raised by defendants about engaging in time-consuming and expensive litigation while waiting for the PTAB’s decision, as well as the fact that COVID-19 may make those endeavors more complicated and burdensome.” (Case No. 3:19-cv-05697; September 9, 2020).

District of Delaware (Wilmington)

Circuit Judge William C. Bryson

British Telecommunications PLC v. IAC/InteractiveCorp., et al. – The U.S. District Court for the District of Delaware granted defendants' motion to stay pending reexamination by the Patent & Trademark Office. As part of its analysis, the Court found that the delay factor would not “constitute undue prejudice” noting that “while the COVID-19 pandemic adds an additional layer of uncertainty to predicting the amount of delay that would result from a stay, any postponement of the trial caused by the pandemic would mean the period of delay resulting from a stay would be less than under normal circumstances.” Although claim construction and fact discovery is complete and the trial date has been set for November 30, 2020, the Court noted that “it seems highly unlikely that the present schedule will hold” due to the COVID-19 pandemic. In particular, “when the court transitions to ‘phase 2,’ it will begin conducting jury trials, but at a significantly reduced rate from normal, holding no more than one jury trial at a time. Furthermore, the court has announced that for jury trials held in phase two, criminal cases will be given precedence. And once trials resume, the district court will be faced with the challenge of dealing with the backlog of civil cases that has built up during the past five months.”  As such, the Court indicated it was unlikely that the trial could be conducted before the end of this calendar year. (Case No. 1:18-cv-00366; September 11, 2020).

Magistrate Judge Christopher J. Burke

Shure Incorporated et al v. ClearOne, Inc.  – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit a joint letter regarding the September 21, 2020 preliminary injunction hearing, among other things, indicating “their views regarding how the hearing should work from a logistical perspective in the event that it must be converted to a videoconference hearing using the Skype for Business platform in light of the COVID−19 pandemic.” After reviewing the letter submitted by the parties, the Court ordered that the preliminary injunction hearing will be held via videoconference using the Skype for Business platform. (Case No. 1:19-cv-01343, presiding before District Judge Richard G. Andrews; August 3, 2020 and September 1, 2020).

Middle District of Florida (Jacksonville)

District Judge Harvey E. Schlesinger

Depuy Synthes Products, Inc. v. Veterinary Orthopedic Implants, Inc. – The U.S. District Court for the Middle District of Florida in Jacksonville denied Veterinary Orthopedic Implants, Inc.’s motion to modify the June 26, 2020 Order Regarding the Markham Hearing Currently Scheduled for September 2, 2020, instead postponing the Markham hearing and scheduling a telephonic status conference for the same date, September 2nd, at which time the parties Court will reschedule the Markman hearing for early 2021 in which an in-person hearing may be held. Notably, the Court reserved the right to change the in-person hearing to a video conference, taking into consideration the uncertainties regarding “future containment, vaccinations, and treatments for COVID-19.” The Court further stated that, if required, it would rule based solely on the briefs, but is not inclined to do so at this time. In a September 4, 2020 Order, the Court set the Markman hearing for February 17, 2021 at 9:00 a.m. (EST).  The Court indicated that its preference is for an in-person hearing, however that “is subject to change due to the serious health concerns presented by the COVID-19 pandemic.” (Case No. 3:18-cv-01342; August 18, 2020 and September 4, 2020).

Middle District of Florida (Orlando)

District Judge Wendy W. Berger

Bell Semiconductor, LLC v. Renesas Electronics Corporation et al. – The U.S. District Court for the Middle District of Florida in Orlando granted the parties' motion to continue a technology tutorial, but denied their request to conduct the tutorial via videoconference because of the COVID-19 pandemic. The Court continued the Technology Tutorial Hearing to December 3, 2020, a date closer to the Claim Construction Hearing. Although the Court was “sympathetic to the disruptions the pandemic has caused,” it found the request to appear by video to be premature, and without good cause, particularly since the hearing is still three months away. (Case No. 6:19-cv-02196; September 15, 2020).

Northern District of Illinois (Eastern Division—Chicago)

District Judge John Z. Lee

Beckman Coulter Inc. v. Sysmex America Inc., et al.The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago requested that the parties try again to arrive at dates for the Markman hearing after the parties reported that they could not come to an agreement during the prior meet and confer process. The Court indicated it was hard to believe that the parties could not accomplish the “rather noncontroversial task”, admonishing the parties that during these uncertain times “it is not too much to expect the parties and their counsel to exercise a modicum of professional courtesy to agree on dates.” Finally, if the parties fail to agree on dates, the Court stated it will simply pick dates that work best with its schedule. In a June 17 Minute Entry Order, the Court ordered parties to appear in person in the Judge's courtroom on June 23, 2020 at 9:30 and “to bring with them a calendar noting the availability of their respective experts over the next three months.” The Court further instructed Counsel to review the Northern District's order regarding COVID−19 safety precautions at the courthouse. The Markman hearing is set for September 10th and 11th and will proceed via video. Members of the public and media will be able to call in to listen to the hearing. (Case No. 1:18-cv-06563; June 9, 2020, June 17, 2020 and September 4, 2020).

Eastern District of Texas (Marshall Division)

Magistrate Judge Roy S. Payne

Clear Imaging Research, LLC v. Samsung Electronics Co., Ltd. et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied the parties’ Joint Motion to Hold Virtual Claim Construction Hearing, ruling that the Markman Hearing will take place in-person on October 14, 2020 at 9:00 a.m. Although the Court recognized that counsel reside in different areas of the United States and will need to travel to the Courthouse, it did not “believe at this time that this alone is sufficient to meet good cause.”  In addition to the risk posed by counsel having to travel to the Courthouse during the COVID-19 pandemic, the parties also raised that “counsel will need to quarantine adequately prior to the hearing (and after the hearing) causing disruption.” (Case No. 2:19-cv-00326, presiding before Chief District Judge J. Rodney Gilstrap ; September 4, 2020).

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Mediation/Settlement Conferences

 

Western District of Pennsylvania (Pittsburgh)

District Judge Robert J. Colville

Cutsforth, Inc. v. Lemm Liquidating Co., LLC, et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh referred the case to Judge Robert J. Colville for Settlement/Mediation purposes only. The mediation was scheduled to be held via videoconference  on September 15, 2020 at 10:00 a.m. (EDT). The Court indicated that “[h]aving a client, insurance carrier, or lead attorney with authority available only by telephone, while not preferred, is an acceptable alternative, given the present circumstances surrounding the COVID-19 pandemic.” Judge Colville issued a further order indicating the upcoming September 15, 2020 Mediation (Settlement) Conference will be conducted entirely by video, using the “Zoom” app, with both Counsel and the Court participating remotely. The Settlement/Mediation Conference was held on September 15, 2020 via video-conference, but the matter was not resolved between the parties. (Case No. 2:17-cv-01025, presiding before District Judge Cathy Bissoon; July 6, 2020, July 8, 2020, July 31, 2020 and September 15, 2020).

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Trial

District of Delaware (Wilmington)

District Judge Richard G. Andrews

Baxalta Incorporated et al v. Bayer Healthcare LLCThe U.S. District Court for the District of Delaware in Wilmington issued a Scheduling Order in which it continued the trial due to the COVID-19 pandemic, stating that it “really doubt[ed] that a jury trial is feasible on September 21st under the circumstances.”  The Court felt a jury could be selected, however, “realistically . . . it would be a lot better to have a test jury trial where the practical difficulties of the trial are not exacerbated by having nearly every significant participant in the trial being from out-of-state.” Although it doubted that the parties would consent to a bench trial, the Court did note that such a trial would be possible to proceed as currently scheduled. The Court also expressed “concern that six months (and counting) of postponed trials is going to be a problem going forward” and that the “parties should expect to be double- or triple-booked for trial . . . [and] that they may not know until the eve of trial whether their trial will move forward.” In an Order After Conference, the Court reset the jury trial date for March 15, 2021.  (Case No. 1:17-cv-01316; August 12, 2020 and August 31, 2020).

Horizon Medicines LLC v. Alkem Laboratories Ltd. – The U.S. District Court for the District of Delaware in Wilmington issued an Order rejecting a proposal to delay the bench trial, currently scheduled to proceed on September 14-16, 2020, until early 2021 so “that all witnesses attend the trial and testify in person.” The Court stated that it expects to go forward with the trial as scheduled, because the thirty-month stay will expire on November 30, 2020, and the defendant “may be in a position vis-à-vis the FDA’s requirements to launch then or soon thereafter.” As such it is in “the public interest” that the case be decided before then so that if not enjoined the defendant “has the option to launch and to provide generic competition.” With respect to the witnesses “unable or unwilling to testify in person”, the Court indicated that they may testify by video. The Court further noted that its expects “to have a limited number of lawyers, probably two per side, actually present in the courtroom . . . [that masking] and social distancing will be enforced . . . [and any] other persons (party representatives, other lawyers, support staff, the public) will not be in the courtroom, but will be able to watch the proceedings via video feed in another room or courtroom.” In an Order After Pretrial Conference, the Court indicated that the bench trial will begin on September 14, 2020 at 8:30 a.m. (EDT).  The Court also indicated that trial counsel shall be “limited to two attorneys per side, with no substitutions.”  (Case No. 1:18-cv-01014; July 29, 2020 and August 31, 2020).

Public access information for the bench trial, starting daily on September 14, 2020:

Meeting ID: 914 3784 8608.

Passcode: 065590.

Dial-in by phone ONLY

+1 312 626 6799 US (Chicago)

+1 346 248 7799 US (Houston)

+1 646 876 9923 US (New York)

+1 669 900 6833 US (San Jose)

+1 253 215 8782 US (Tacoma)

+1 301 715 8592 US (Germantown)

Ingevity Corp., et al. v. BASF Corp. – The U.S. District Court for the District of Delaware in Wilmington granted the plaintiff’s request for a continuance of the jury trial, due to issues related to the COVID-19 pandemic, finding “there is little chance for a successful jury trial on September 14th, and I think it is prudent to continue it now.”  The Court noted that “this is a jury trial, not a bench trial, and, while I believe that most bench trials should be able to be fairly conducted through partial or complete reliance upon video technology, a jury trial is a different animal.” The Court did not, however, continue the August 28, 2020 pretrial conference, indicating in a separate oral order, that it will be held using Skype for business. In an Order After Pretrial Conference, the Court indicated that the jury trial will begin on January 4, 2021 at 9:30 a.m. (EST). The Court indicated that under the present plans trial counsel would be limited to two per side and noted that during the conference it had “explained some of its expectations in relation to COVID-19, and also set a conference on December 14, 2020, at 10 a.m. to further refine them in light of then-current events.” In an Order After Pretrial Conference, the Court indicated that the jury trial will begin on January 4, 2021 at 9:30 a.m. (EST). The Court indicated that under the present plans trial counsel would be limited to two per side and noted that during the conference it had “explained some of its expectations in relation to COVID-19, and also set a conference on December 14, 2020, at 10 a.m. to further refine them in light of then-current events.” (Case No. 1:18-cv-01391; August 3, 2020 and August 28, 2020).

Sprint Communications Company L.P. v. Charter Communications, Inc. et al. – The U.S. District Court for the District of Delaware in Wilmington granted the defendants’  request for a continuance of the jury trial currently scheduled to begin on October 5, 2020, due to issues related to the COVID-19 pandemic, stating that the Court did not think “it prudent to make the first civil jury trial in Delaware be one in which the risk from the nature of the case – no one from Delaware but me, court staff, and the jury – is at the maximum, particularly when there is essentially no harm from delay.” The defendants had argued, among other things, that many of the counsel and witnesses would need to travel to Delaware from other states and that “given the size of [the] case and the number of counsel involved, a trial that limits Defendants to 4-6 people in the courtroom would be unduly prejudicial . . . with 8 or more counsel anticipated to handle aspects of the trial.” In the Order, the Court indicated that if the trial were held on October 5th it would only allow 2 attorneys per side in the Courtroom, further stating that it “may insist on this practice for some time.” (Case No. 1:17-cv-01734; September 2, 2020).

Middle District of Florida (Tampa)

District Judge Thomas P. Barber

Pierce Mfg., Inc., et al. v. E-One, Inc., et al. – The U.S. District Court for the Middle District of Florida in Tampa issued a notice to the parties in cases presiding before Judge Thomas P. Barber regarding jury trials. The notice states that “Judge Barber is interested in attempting short, ‘in person’ civil jury trials (no more than two days including jury selection) in late September/October. Such cases may be reset for trial during this period, regardless of any previously set trial dates, as long as ALL participants, including witnesses, are comfortable proceeding “in person.” If you believe you have a case that meets these parameters and would like to discuss the possibility of proceeding to trial in late September/October, please contact Courtroom Deputy Sonya Cohn by email (sonya_cohn@flmd.uscourts.gov) no later than AUGUST 31, 2020. Judge Barber will then set a Status Conference, most likely by ZOOM, to further discuss the case. If, during the Status Conference, all participants agree the case is ready and appropriate for a jury trial, the trial will take place on a “date certain” that is mutually agreed upon by the parties and the Court.” The notice goes on to say that “[c]ounsel are encouraged to take advantage of this opportunity. Once jury trials resume, it is anticipated that criminal cases will consume most, if not all, available trial time for several months.” The jury trial was set to begin on January 25, 2020 and the Status Conference was set for December 9, 2020 at 01:30 PM via Zoom. (Case No. 8:18-cv-00617; August 20, 2020 and September 3, 2020).

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. (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020 and September 4, 2020).

Western District of Pennsylvania (Pittsburgh)

District Judge Cathy Bissoon

Cutsforth, Inc. v. Lemm Liquidating Co., LLC, et al. – The U.S. District Court for the Western District of Pennsylvania in Pittsburgh sua sponte stayed and administratively closed the case, postponed the jury trial from April 20, 2020 to October 26, 2020, and further amended the Pre-trial Scheduling Order. In a May 19, 2020 Text Order the Court stated “the COVID-19 pandemic continues to create barriers to resuming normal, in-person operations in our nation's courts. . . . [with no issue] more problematic than the resumption of jury trials . . . [because] there can be no doubt that from selection to deliberation, jury trials pose unique and potentially, unavoidable concerns during this pandemic.” The parties were ordered to file a joint notice, on or before June 15, 2020, indicating whether they jointly and voluntarily consent to waiving their right to a jury trial and to converting the case to a bench trial, without specifying who did or did not consent. In a Second Amended Final Pretrial Order, the Court scheduled the 5 day jury trial for May 24, 2021, at 9:00 a.m. (Case No. 2:17-cv-01025; March 17, 2020, May 19, 2020 and September 16, 2020).

Eastern District of Texas (Marshall Division)

Chief District Judge J. Rodney Gilstrap

Personalized Media Communications LLC v. Google LLC et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted as modified, the defendants’ Motion to Continue Trial, requesting a 90-day extension to the jury trial.  The Court re-set the jury selection and trial from October 1, 2020 until November 2, 2020, with the pretrial conference to be held on October 19 and 21, 2020. The defendant requested the continuance for, among other reasons, the unavailability of witnesses due to another litigation. The defendant also argued that “due to the COVID-19 pandemic, good cause exists to continue the trial from October in light of the totality of the circumstances.” As part of this argument, the defendant argued it would be “unfairly” prejudiced particularly because plaintiff’s witnesses are currently planning to attend in person and at least one of the defendants’ witnesses will likely not be able to attend trial in person. According to the defendants, plaintiff would “not stipulate to witnesses appearing remotely due to COVID-19 concerns . . . and also indicated it intends to affirmatively argue to the jury that any [defendant] witness who appears remotely did so not because of the legitimate safety concerns of COVID-19, but instead because the case must not be important to defendant.” Even if such an argument is precluded, defendants noted that “the jury may nonetheless draw that same conclusion or reach other negative impressions.” (Case No. 2:19-cv-00090; September 14, 2020).

Magistrate Judge Roy S. Payne

GREE, INC v. Supercell Oy – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendant’s motion seeking a continuance of the August 3, 2020 jury trial date, stating that it was “persuaded by the unopposed nature of the motion and the conditions the parties have agreed upon.” The defendant had raised concerns that the trial “presents the risk of becoming a super spreader event”, given the accelerating COVID-19 pandemic and the number of attendees from different locations, due process issues related to restrictions on its ability to have in-person witnesses from abroad and the lack of prejudice to either party in moving the trial to September, particularly given the denial to institute the related IPR proceedings and other agreements made by defendant.  The pretrial conference was continued to August 17, 2020, with trial continued to September 14, 2020. The final pretrial conference was reset for August 18, 2020 and jury selection was reset until September 10, 2020 at 9:00 a.m. (CDT) The Court denied defendant’s Renewed Motion For A Trial Continuance In View Of Concerns Presented By The Covid-19 Virus, which was filed “roughly 36 hours before jury selection [was] set to occur in [the] case.” The Court was not persuaded by defendant’s complaint that it “does not possess the ability to make its three Finland-resident fact witnesses attend trial,” in part because there was no evidence defendant tried. Finding the showing made insufficient, the Court stated that defendant’s “only request is an indefinite continuance of the trial.”  (Case No. 2:19-cv-00070/00071, presiding before Chief District Judge J. Rodney Gilstrap; July 21, 2020, August 17, 2020 and September 9, 2020).

Eastern District of Texas (Sherman Division)

District Judge Amos L. Mazzant, III

Innovation Sciences, LLC v. Amazon.Com, Inc.– The U.S. District Court for the Eastern District of Texas’s Sherman Division provided instructions to attorneys, during the final pretrial conference, regarding the COVID-19 protocol that the Court will follow during the jury trial scheduled to begin on August 24, 2020. Among the instructions provided were that temperatures will be taken at the door of the jurors each day, Counsel will need to wear masks unless questioning the witnesses and should stay at podium during questioning, face shields will be provided to the jurors that are selected, and that no more than 5 will be allowed at Counsel table with social distancing practices encouraged. The Court further advised the parties that “Counsel should wear masks and try to limit bench conferences as much as possible.” The Court also indicated that staff will wipe down the witness stand but attorneys are encouraged to wipe down the podium after each use before the next counsel takes the podium. At least one elderly witness that can’t travel due to the COVID-19 pandemic would be appearing via a video conference system, with another third party witness also possibly appearing by video. On September 2, 2020, the Eastern District of Texas jury returned its verdict, finding that the patents were not proven to be infringed and were proven to be invalid and well-understood, routine and conventional at the time of the invention. (Case No. 4:18-cv-00474; August 13, 2020 and September 2, 2020).

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