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New This Week (November 25, 2020)

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Scheduling/Case Management 

Central District of California (Southern Division—Santa Ana)

District Judge Judge Josephine L. Staton

American River Nutrition, LLC v. Beijing Gingko Group Biological Technology Co., Ltd et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana granted, as modified, a joint stipulation to modify the Scheduling Order. The Court noted that there have been three modifications previously granted in the matter where overseas discovery and depositions have been greatly complicated by the COVID-19 pandemic. In the present motion, the parties informed the Court that the deposition of a witness for the defendants, in his individual capacity and as the corporate representative, was delayed by about a week due to COVID-19 travel protocols. In particular, the witness “was unable to board his flight to Macau (the agreed-to deposition location) because, upon testing at the airport in Beijing, China, [he] was found to have an elevated temperature.” The witness was forced to quarantine until his temperature lowered and he could retake the COVID-19 test. However, the Court found that the parties failed to explain how this one-week delay provides good cause for the one-month extension of case deadlines they request, instead finding good cause to extend the remaining pretrial deadlines by one week. (Case No. 8:18-cv-02201; November 20, 2020).

Northern District of California (San Francisco)

District Judge William Haskell Alsup

California Beach Co., LLC v. Exqline, Inc. et al. – The U.S. District Court for the Northern District of California in San Francisco granted plaintiff’s Motion for Substituted Service of Process Pursuant to FRCP 4(f)(3) to serve the Summons and Complaint on one defendant through its U.S.-based counsel, and for substituted service of process on another defendant by email. The decision to allow service by email was in part made because the plaintiff made multiple attempts to serve defendant at its physical addresses and discovered that these addresses were “unsuitable for service” because they were closed at this time and for the foreseeable future due to the COVID-19 pandemic. In a November 7, 2020 Order, the Court granted accused direct infringer defendant’s motion to transfer and accused indirect infringer defendant’s motion to dismiss, following full briefing and an oral argument that was held telephonically due to the COVID-19 pandemic. (Case No. 3:20-cv-01994; July 7, 2020 and November 7, 2020).

Google LLC v. Sonos, Inc.. – The U.S. District Court for the Northern District of California in San Francisco issued an Order Staying Case until the presiding Judge in a related case in the Western District of Texas can rule on plaintiff’s motion to transfer. The issued Order followed briefing and an oral argument that was held telephonically due to the COVID-19 pandemic. As part of it analysis the Court noted that both parties might be “guilty of forum shopping” in the various cases they filed, and that a court congestion argument made by the defendant that Texas was a better forum, because the Western District of Texas ”has continued to hold patent trials despite the pandemic, whereas [the Norther District of California] has largely ceased holding jury trials”, was rejected by the Federal Circuit.  The Court decided that if the judge in Texas grants the motion to transfer, it will take the case and if the Texas judge denies such motion then this case will remain stayed indefinitely in favor of the Texas action. (Case No. 3:20-cv-06754; November 20, 2020)

Northern District of Illinois (Eastern Division—Chicago)

District Judge Franklin U. Valderrama

Nordstrom Consulting, Inc. et al v. Innova Systems, Inc. et al. – The U.S. District Court for the Northern District of Illinois’s Eastern Division in Chicago denied defendants’ Motion for Leave to Amend their Counterclaim, without prejudice, stating that the “defendants cannot use the pandemic generally as a shield to hide their failure to act diligently.” Although the Court acknowledged that the pandemic caused litigation delays in March and April of 2020, the defendants failed to explain why they failed to file in the two months before the pandemic (when they were in the possession of the necessary information), or how the pandemic affected their ability to file their Motion for Leave to Amend between mid-March 2020 and May 28, 2020. (Case No. 1:18-cv-03011; November 6, 2020).

 

 

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Discovery

Central District of California (Southern Division—Santa Ana)

 

District Judge Josephine L. Staton

Evolusion Concepts, Inc. d/b/a AR Maglock v. Juggernaut Tactical, Inc. et al. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana granted defendant’s Motion for Leave to Supplement Invalidity Contentions and Expert Report on Invalidity, finding “good cause” after considering defendant’s diligence, any potential prejudice to the plaintiff and other relevant considerations. In finding that any potential prejudice to the plaintiff is “minimal”, the Court noted that the final pretrial conference has already been delayed until September 4, 2020 because of the COVID-19 pandemic and that due to the “effects on both in-person proceedings in this District as well as the Court’s calendar, further delays of that conference and an eventual jury trial date are likely unavoidable.” As such, the Court found that there will be “ample time for [plaintiff] to fully investigate the single prior art reference at issue in [the] Motion.” On November 16, 2020, the Court issued an Order Granting Joint Stipulation To Extend Discovery Deadlines, requested in part because of the unavailability of the defendant’s technical expert to be deposed due to the COVID-19 pandemic, as well as other circumstances. (Case No. 8:18-cv-01378; July 9, 2020 and November 16, 2020).

 

District of Delaware (Wilmington)

District Judge Maryellen Noreika 

Chugai Pharma. Co., Ltd. a/k/a Chugai Seiyaku Kabushiki Kaisha v. Alexion Pharma., Inc. – The U.S. District Court for the District of Delaware in Wilmington granted an additional extension to the case schedule after the parties agreed that the extensions were warranted in light of the impact of the COVID-19 pandemic. The deadline for the Final Infringement Contentions was moved from August 26, 2020 to October 21, 2020. Other major dates were likewise extended with the Pretrial Conference moved from July 12, 2021 to September 27, 2021. On November 9, 2020, the Court entered a Joint Stipulation and Order to Continue Case Schedule, providing an additional extension of the case schedule “in light of the unexpected impact of the COVID-19 pandemic on travel internationally, and the delay caused by those travel restrictions on depositions in [the] matter.” On the November 16, 2020, the Court stayed the case in its entirety, other than allowing defendant to take already noticed depositions of available witnesses, until plaintiff “is able to make its currently unavailable witnesses available (1) for deposition or (2) to respond to questions without assistance or input from others.” (Case No. 1:18-cv-01802; August 18, 2020, November 9, 2020 and November 16, 2020).

Chief District Judge Leonard P. Stark

Cirba, Inc. d/b/a Densify, et al. v. VMware, Inc. – The U.S. District Court for the District of Delaware in Wilmington entered the Stipulation And Order Regarding Modification To The Protective Order reflecting the parties “special accommodation” providing a temporary modification to the inspection protocols set forth in the Protective Order to “reconcile the needs of this case with the exigencies” relating to the COVID-19 pandemic. In particular, the parties modified paragraph 48 of the Protective Order so that counsel for the producing party would provide four copies of original printouts to counsel for the receiving party within four business days of being notified that such original printouts have been made. On November 13, 2020, the Court entered the parties Stipulation Concerning Remote Depositions which recognized that the court reporter will not be physically present with the witness during any deposition due to the COVID-19 pandemic. The parties agreed the court reporter may administer the oath via videoconference. (Case No. 1:19-cv-00742; October 5, 2020 and November 13, 2020).

District of Massachusetts (Boston)

District Judge Allison D. Burroughs

Virtek Vision International ULC v. Assembly Guidance Systems, Inc. d/b/a Aligned Vision – The U.S. District Court for the District of Massachusetts entered a Stipulation Addendum To Confidentiality Agreement And Order Regarding Treatment Of Source Code. In order to “accommodate concerns regarding safety during the COVID-19 pandemic,” the agreement provides that the receiving party may “request that [code] inspection be done remotely using a third-party virtual code review platform” if the disclosing party elects to produce the source code for inspection at the offices of its counsel or another mutually agreeable location. (Case No. 1:20-cv-10857; November 20, 2020).

 

 

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Patent Specific Hearings/Motions

 

Central District of California (Western Division - Los Angeles)

District Judge Andre Birotte, Jr.

Guy A. Shaked Investments, Ltd. et al v. Trade Box, LLC  – The U.S. District Court for the Central District of California in Los Angeles granted defendant’s Motion For Stay Pending Inter Partes Review. As part of its analysis of the factor related to potential prejudice and tactical disadvantage, the Court noted that in light of the COVID-19 pandemic the current trial date would not stick in any event. (Case No. 2:19-cv-10593; November 18, 2020).

Western District of Texas (Austin)

District Judge Alan D. Albright

VLSI Technology LLC v. Intel Corporation – The U.S. District Court for the Western District of Texas in Waco issued an Order Transferring Trial Venue, holding, pursuant to the Federal Rule of Civil Procedure 77(b) and the Court’s inherent authority, that if the Austin courthouse does not reopen with enough time to hold a January trial, the trial will be held in Waco. The Court noted that the Austin courthouse is currently closed and has been closed on a month-by-month basis since March 2020 while the Waco division reopened in September 2020 and has since successfully conducted three in-person jury trials. Because there is “no foreseeable end to the COVID-19 pandemic,” and therefore no foreseeable end to the closure of the Austin Courthouse, the Court believed it needed to consider moving the trial to an open courthouse in the district. As part of its analysis, the Court noted that the pandemic has created a backlog of trials such that delaying one trial further delays other trials and since “patents have a limited term, the Court does not believe it should unnecessarily delay a trial date, especially when an alternate venue is available.” (Case No. 1-19-cv-00977; November 20, 2020).

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Mediation/Settlement Conferences

 

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 issued an order directing the parties to file a Motion For Leave to Reschedule Mediation Conference by October 16, 2020.  The parties were scheduled to mediate on October 6, 2020, but filed a notice of mediation to be held on December 17, 2020. Although the Court had previously extended the dates in the Case Management and Scheduling Order due to the COVID−19 pandemic on April 9, 2020, the Court did not alter the date of the scheduled second mediation conference. The Court reminded the parties that they “may not unilaterally reschedule the mediation conference − a motion must be filed, and leave of Court obtained." On November 12, 2020, the Court granted the parties’ joint Motion for Leave to Conduct Mediation via Videoconference.  The parties wanted to avoid having to select another mediator since the current one was refusing to conduct in-person mediations due to the ongoing COVID-19 pandemic and concerns over in-person contact through meetings or travel, preferring to take precautions to limit in-person contact. (Case No. 8:19-cv-01731; October 9, 2020 and November 12, 2020).

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Trial

District of Delaware (Wilmington)

District Judge Richard G. Andrews

TQ Delta LLC v. ADTRAN Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order directing the parties to advise the Court of their views regarding the “feasibility” of the scheduled jury trial currently set to begin on August 31, 2020.  In particular, the parties were requested “to state which witnesses they intend to call live, to identify the states in which the witnesses live and their views on travel to Delaware then, and to identify any other currently known concerns about the scheduled trial.” The Court granted defendant’s  Motion to Strike Reply Expert Opinions Based on the Doctrine of Equivalents, in part because it found that “the COVID-19 pandemic has already disrupted plans for an ‘orderly and efficient trial,’ [and] re-opening discovery to give Defendant an opportunity to cure the prejudice would only disrupt the schedule further.”  In a separate Oral Order, the Court indicated that the pretrial  conference scheduled for August 21, 2020, will be held using Skype for business. On August 4, 2020, the Court granted defendant’s request for a continuance of the trial, with the Court finding that  various “factors” made it believe that this case is not a “particularly good case with which to conduct a jury experiment during a pandemic.” Counsel and many of the witnesses would be coming from out of state, including two defendant fact witnesses and an expert witness, who is in a “high-risk category”, that do not want to travel to Delaware for the trial as scheduled. The Court also noted that Delaware is still in Phase One of reopening and by standing order has postponed all jury trials through August 30, 2020; it did “not think it is prudent to maintain a schedule for a jury trial for the first day on which it is currently possible to hold such a trial.” (Case No. 1:14-cv-00954; July 28, 2020, July 31, 2020, August 3, 2020, August 4, 2020 and November 6, 2020).  

Attachment:
TQ Delta LLC v. ADTRAN Inc. DI 1189 - August 3, 2020

District Judge William C. Bryson

Lipocine Inc. v. Clarus Therapeutics, Inc. – The U.S. District Court for the District of Delaware in Wilmington issued an Order clarifying the schedule in response to a submission from plaintiff requesting guidance as to scheduling of events up to and including the trial.  The Court indicated that, in light of the current situation with the COVID-19 pandemic, the February 2021 jury will likely be postponed.  As such, the parties were instructed to assume that the February 8, 2021 trial date will not hold, for the purposes of making necessary arrangements for trial. The parties were further instructed, however, that the remaining scheduled tasks set forth in the scheduling order were not postponed, and should be completed as currently scheduled to “ensure the maximum flexibility in rescheduling the trial if doing so becomes necessary.” The Court further indicated that it will conduct the jury trial on legal issues first and the bench trial on the inequitable conduct issue afterwards, considering any evidence that is introduced at the jury trial but is also relevant to inequitable conduct.  (Case No. 1:19-cv-00622; November 12, 2020).  

District Judge Maryellen Noreika

TRUSTID, Inc. v. Next Caller Inc. – The U.S. District Court for the District of Delaware in Wilmington ordered the parties to submit a letter by June 30, 2020, stating either that all parties agree to go forward with the pretrial conference on July 6, 2020 live in the Courthouse or that all parties do not so agree to proceed live.  The Court indicated it was “cognizant that traveling from other parts of the country or appearing live in court may present obstacles for counsel, [and therefore] the conference will take place live in court only if 1) all parties agree and 2) all attendees wear face coverings unless excused because social distancing is observed.”  If all parties do not agree to an in-person proceeding, the pretrial conference will take place telephonically or at a later date when it can be held in-person. The Court further advised the parties that “[i]f the hearing proceeds in the courtroom, each side may have no more than two (2) counsel present, only one of whom may sit at counsel table at any given time [and arguments] will be made from counsel table.” The jury trial is currently set to begin on December 14, 2020. In a July 2, 2020 Order, the Court postponed the pretrial conference to a date to be determined. The Court reset the pretrial conference for December 7, 2020 at 1:00 p.m. (EST) and indicated that “the format (live or remote) [will] be determined closer to the time of the conference.” In response to a joint request from the parties to postpone the 5-day jury trial “in view of the parties’ concerns about conducting a jury trial in the midst of the on-going pandemic,” the Court reset the jury trial for July 12, 2021 at 9:30 a.m. (EDT), and reset the pretrial conference for June 28, 2021 at 10:00 a.m. (EDT). (Case No. 1:18-cv-00172; June 29, 2020, July 2, 2020, September 25, 2020 and November 5, 2020).

Chief District Judge Leonard P. Stark

Adverio Pharma GmbH et al v. MSN Laboratories Private Limited et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order ruling on a number of recent filings. The Court indicated that it intends to proceed, as scheduled, in December, with as much of the remote bench trial as possible, possibly the entirety of  the trial. The Court had previously stated that it expected to be available for trial at some or all of the following times: December 14: 12 pm to 7 pm; December 15, 16, 17, 18: 8 am to 7 pm; December 22: 8 am to 12 pm; and December 23: 8 am to 1 pm. The Court was not persuaded by Plaintiffs that its fact witnesses are unavailable to testify live (remotely) or that, if they are unavailable, that admission of their deposition testimony is not a fair substitute. The Court stated that both sides will have a full and fair opportunity to present their positions (before, during, and after trial) as to whether any non-appearance of any witnesses live at trial is due to issues relating to the merits of the inequitable conduct allegations, travel restrictions arising from the COVID-19 pandemic, or other factors. The Court further set a teleconference with the parties to be held on Wednesday, November 25, 2020, beginning at 11:00 a.m. (EST) to discuss their proposals and any disputes in the joint status report and how the case should now proceed. (Case No. 1:18-cv-00073; November 18, 2020).

Public Access Information for the November 25, 2020 Teleconference at 11 am (EST):

Call-in Number: 877-336-1829

Access code: 1408971

Align Technology, Inc. v. 3Shape A/S et al. – The U.S. District Court for the District of Delaware in Wilmington issued an Oral Order, after reviewing the parties' Joint Status Report, setting the first of plaintiff’s seven trials against defendant for April 12, 2021 before a jury with a bench trial on the equitable defenses to be held concurrently or immediately after the conclusion of the jury trial. The next trial to be held would be case initiated by the defendant to followed by the remaining trials initiated by the plaintiff.  Among the considerations cited by the Court in making its determinations was “the Court's highly constrained resources (especially with respect to its ability to conduct jury trials), particularly during the pandemic.” The Court also noted agreement with plaintiff’s position “that it would not be prudent ‘to burden the jury [in the first action] with an additional, unnecessary decision’ by requiring an advisory jury verdict on equitable issues.” (Case No. 1:17-cv-01646; November 13, 2020).

Guardant Health, Inc. v. Foundation Medicine, Inc. – On April 23, 2020, the U.S. District Court for the District of Delaware in Wilmington granted the defendant's motion to continue a trial scheduled to begin on June 8, 2020, due to the viral outbreak until either July or October 2020. In doing so, the court expressed its primary concern as to “whether it will be safe and consistent with the public interest to conduct jury selection (a process likely to involve more than 40 citizens and an approximately equal number of court staff, lawyers, and party representatives) and empanel a jury (which would then, in normal practice, consist of 8 jurors confined to a jury box and a jury room during working hours for at least a week).” The court also noted a further secondary concern, irrespective of whether it is possible to select and empanel a jury by June 8th, as to whether “it will be safe and prudent for counsel and all required witnesses and party representatives to travel from their homes at various locations around the country and spend a week or more together (in hotels or temporary residences, in restaurants, in the courtroom, etc.) in Delaware.” Given the trial is only about six weeks away, the court felt that since it “seems nearly certain that one or more” of the trial team members or an expected live witness is part of a vulnerable population, or has commitments to others who need special care under the current circumstances that takes “precedence over the Court’s strong interest in keeping its cases moving and conducting trials in a timely manner[.]” On September 25, 2020 the Court ordered the parties to meet and confer and submit a joint status report including their proposals for how the case should proceed in light on the ongoing COVID-19 pandemic. In particular, the parties were instructed to address “whether the Court should consider continuing the trial to a date certain, continuing the trial to a date to be determined, proceeding with the trial as scheduled but converting it to a bench trial (and, if so, whether it should be partially or wholly remote), or proceeding with the trial as scheduled as a jury trial (and, if so, what restrictions the Court should consider regarding the number of attorneys and witnesses and others who may be in the courtroom). On October 5, 2020, the Court advised the parties that courtroom space is available for a potential November 30 trial date and ordered them to meet and confer and submit a joint status report no later than October 6, 2020, advising the Court whether it should reschedule trial for November 30, 2020. In addition, the parties were ordered to “advise the Court of their views on: (1) foregoing any jury trial right in favor of a bench trial; (2) whether there are any members of the trial team or any party who cannot or should not travel to Delaware and be physically present in the courtroom due to their own health situation or the health situation of those with whom they reside; (3) whether any witnesses cannot or should not travel to Delaware and be physically present in the courtroom for the same reasons; (4) which witnesses the parties propose will appear in person and which will appear by remote video conferencing technology; and (5) whether the court should restrict the number of attorneys and trial team members present in the courtroom.” On October 16, 2020, the Court ordered that the jury trial will commence on November 30, 2020 and the pretrial conference will be conducted via videoconference technology and held on November 13, 2020 at 2:00 p.m. The Court stated that if delayed it was unclear when trial would occur, since there are at least 200 civil jury trials scheduled for 2021 in the District of Delaware (not including criminal trials and continued civil trials awaiting a new trial date) and under current restrictions only one jury trial may proceed at a time. The Court adopted the parties suggestions that all witnesses testify remotely, because not all of the witnesses could travel to Delaware and the Court was concerned about the “risk of unfair prejudice to one side, should more of its witnesses (or a more ‘important’ witness) not be able to come to the courtroom than is the case for the other side.”  The Court further limited each side to a maximum of five representatives physically present in the courtroom at any one time, with one slot reserved for Delaware counsel, but did not require that each slot be occupied by the same person each day. In addition, a video feed of the trial will be transmitted to another courtroom in the courthouse. The parties were also permitted to state and preserve objections to the order and how the trial will be conducted, including, for example, a concern raised that “the jury pool and jury will not be representative due to the situation that exists in Delaware (and several other states).”  On November 2, 2020, the Court issued an Order continued the jury trial scheduled for November 30, 2020 to a date to be determined, and directing the parties to meet and confer and submit a joint status report. On November 2, 2020, the Court issued an Order continuing the jury trial scheduled for November 30, 2020 to a date to be determined, and directing the parties to meet and confer and submit a joint status report. On November 17, 2020, the Court issued a Memorandum Order overruling defendant’s COVID-related objections, including raising safety concerns and questioning the ability to select a representative jury, but ultimately determined it had to continue trial indefinitely to allow the parties to litigate defendant’s “very serious” spoliation allegations. (Case No. 1:17-cv-01616; April 23, 2020, September 25, 2020, October 5, 2020, October 16, 2020, November 2, 2020 and November 17, 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. 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. (Case No. 1:12-cv-06075; April 17, 2020, May 7, 2020, September 4, 2020, October 8, 2020, October 9, 2020 and November 4, 2020).

Eastern District of Texas (Marshall Division)

Chief District Judge J. Rodney Gilstrap

Infernal Technology, LLC v. Sony Interactive Entertainment America LLC – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion to Continue Trial, for which jury selection was set to begin on December 4, 2020. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” Jury selection was reset for March 1, 2021.  (Case No. 2:19-cv-00248; November 20, 2020).

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.” On November 6, 2020, the Eastern District of Texas jury returned its verdict, finding that the asserted claims of the patents-in-suit were not proven to be infringed. (Case No. 2:19-cv-00090; September 14, 2020 and November 6, 2020).

Ramot At Tel Aviv Univ. Ltd. v. Cisco Systems, Inc. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants’ Motion For Continuance, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.”  (Case No. 2:19-cv-00225; November 20, 2020).

Solas OLED Ltd. v. Samsung Display Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division granted defendants' Unopposed Motion To Continue Trial, removing the jury trial from the October trial docket and indicating that it will be reset at a later date by subsequent order. The defendants had argued that one of its “key expert witnesses, located in West Virginia, is unavailable to travel to Texas to testify live at trial . . . [and he] is also unable to sit for a remote trial deposition by video.” Based on briefing and statements during a telephone status conference, the Court indicated in an Order issued on October 15, 2020, that “having considered the schedules of counsel for the Parties, potential trial witnesses for the Parties, travel schedules, and the current global health situation, the Court is of the opinion that the [case] should be and hereby is specially set as first for trial in the first week of December, with jury selection to begin on December 4, 2020.” On November 20, 2020, the Court granted defendants’ Opposed Motion to Continue Trial, resetting jury selection from December 4, 2020 until March 1, 2021. The Court was “persuaded that the current status of the public health in the Marshall Division of the Eastern District of Texas requires it to continue all in-person jury trials.” It further noted, that “while some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments, requires jury trials to be conducted in-person.” (Case No. 2:19-cv-00152; September 29, 2020, October 15, 2020 and November 20, 2020).

Southern District of Texas (Houston Division)

District Judge Andrew S Hanen

Legacy Separators LLC v. Halliburton Energy Services Inc et al. – The U.S. District Court for the Southern District of Texas’s Houston Tyler Division sua sponte issued an order notifying the parties that there will be “no jury trials in the month of September”, a fact that the Court felt would “likely surprise no one monitoring the COVID-19 statistics.”  In a prior Order, the Court had cancelled the jury trial which had been scheduled to start on August 24, 2020 because the Houston Division had suspended all jury trial until September 8, 2020 “due to the apparent resurgence of COVID-19 cases.”   However, now “the Court believes that the best course of action is for the parties to give proposed dates for a weeklong jury trial in either October, November, or December.”  On September 23, 2020, the Court issued an Order setting the jury trial for November 30, 2020 and the pretrial conference from November 16, 2020. The parties were informed, however, that the Houston Division is only picking one jury per day so the trial may not begin exactly on the 30th.  The Court indicated that it intends to try the case in the courtroom but that “health concerns will be a consideration and [it] . . . may limit attendance at trial.”  Counsel were advised to “keep this in mind as they formulate their trial teams and plan their witness schedules . . . [and to] exercise caution and common sense as to what individuals are needed each day and [that] excess personnel should not be in attendance.” On November 10, 2020, the Court issued a Timing Order allocating 14.5 hours to each side for all testimony and testimony related matters in the jury trial beginning on November 30, 2020. The Court also indicated that “due COVID-19 social distancing, [it] will limit the number of attorneys, spectators, and extra personnel in the courtroom.” On November 17, 2020, the Court issued an Order granting defendant’s Motion to Allow Remote, Video Link Trial of At-Risk Witnesses. During telephonic proceedings on November 19, 2020, the Court notified the parties that trials are cancelled until January 19, 2021, and instructed the parties to meet and confer to find a date between January 19 and February 8, 2021 to set trial.  (Case No. 4:14-cv-02081; July 9,  2020, August 12, 2020, September 23, 2020, November 10, 2020, November 17, 2020 and November 19, 2021)..

 

Eastern District of Wisconsin (Milwaukee)

Magistrate Judge Nancy Joseph

Raffel Systems, LLC v. Man Wah Holdings Limited, Inc. et al. – The U.S. District Court for the Eastern District of Wisconsin in Milwaukee granted defendant’s motion to reconsider the in-person format of the trial, deciding that the inventorship hearing will be conducted via Zoom. The Court found, upon further reflection, that “there is good cause and compelling circumstances that justify conducting the inventorship hearing via videoconference.” Although precautions in response to the COVID-19 pandemic were being taken “to lessen the possibility of transmission (such as plexiglass and masks),” the Court found that “the current state of the community spread in Wisconsin and the Governor’s recommendation counsel in favor of conducting the hearing via video.” (Case No. 2-18-cv-01765; November 8, 2020).

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