For those patent cases that were on the eve of trial, or at least relatively close, the COVID-19 pandemic will likely represent a delay—either of a defined or undefined length—as reflected by some of the orders issued in those matters.
Central District of California (Southern Division—Santa Ana)
District Judge Josephine L. Staton
Sportspower Ltd., Inc. v. Crowntec Fitness Mfg. Ltd. – The U.S. District Court for the Central District of California’s Southern Division in Santa Ana sua sponte continued the pretrial hearing and deadlines for motions in limine from April 3, 2020 to August 7, 2020. The order was issued in accordance with the Central District of California’s Continuity of Operations Plan (“COOP”) which suspended hearings in civil cases, except emergency and time sensitive matters including temporary restraining orders and preliminary injunctions, as ordered by the assigned district judge. (Case No. 8:17-cv-02032; March 30, 2020).
Northern District of California (San francisco)
District Judge Richard Seeborg
Gamevice, Inc. v. Nintendo Co., Ltd. et. al. – The U.S. District Court for the Northern District of California in San Francisco granted plaintiff’s Motion and Order to Extend Schedule in View of COVID-19 Travel Restrictions, requesting an approximately three month extension in view of the difficulties in domestic and international travel due to COVID-19 pandemic travel restrictions. The jury trial date, currently scheduled for July 6, 2020, was moved to October 26, 2020. The Final Pretrial Conference will be held on September 23, 2020. (Case No. 3:18-cv-01942; May 19, 2020).
Northern District of California (San Jose)
District Judge Beth Labson Freeman
Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose granted the parties’ stipulation and order extending by two-days plaintiff’s deadline for filing its motion for attorney’s fees, due to COVID-19 and the shelter-in-place orders in San Francisco. (Case No. 5:18-cv-00767; March 19, 2020).
Amazon.com, Inc., et al. v. PersonalWeb Techs., LLC, et al. – The U.S. District Court for the Northern District of California in San Jose denied plaintiffs’ motion to stay a determination of attorney fees and costs pending appeal and rejected plaintiffs’ argument that public policy favored a stay due to the coronavirus outbreak. In analyzing the four factors to determine whether to stay awarding attorneys’ fees and costs pending appeal, the court found that plaintiffs had “made no showing that the public interest would be served by a stay -- only that the court’s ‘potentially reduced resources’ due to COVID-19 health concerns supports a stay.” The court acknowledged that COVID-19 has certainly impacted the courts’ operations across the country, however, it went on to say that “this Court continues to resolve substantive motions.” The court was not persuaded that any of the issues presented warranted a deviation from the court’s usual course of considering attorneys’ fees promptly after the merits decision rather than waiting for resolution of the appeal. (Case No. 5:18-cv-00767; April 20, 2020).
Finjan Inc. v. Cisco Systems Inc., – The U.S. District Court for the Northern District of California in San Jose issued Civil Minutes for the pretrial conference held via Zoom Webinar on April 30, 2020, in which the Court indicated that Jury Selection and the Trial have been set to start on June 22, 2020 at 9:00 a.m. At this time, the Court intends to seat a jury of 8 (subject to change) chosen from a panel of 50. The Court held a Case Management Conference on May 26, 2020, during which it reset the Jury trial date to October 19, 2020. (Case No. 5:17-cv-00072; April 30, 2020, May 21, 2020 & May 22, 2020 and May 26, 2020).
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. (Case No. 3:17-cv-00183; March 16, 2020).
District Judge Janis L. Sammartino
Genentech, Inc. v. Eli Lilly and Co. – The U.S. District Court for the Southern District of California in San Diego, finding good cause, granted the parties’ joint motion to bifurcate the “exceptional case” determination under 35 U.S.C. § 285 and attorney fees motion under Rule 54(d)(2), allowing the court to decide the exceptionality before defendant presents evidence on the amount of its reasonable attorney fees. The parties’ request is in response to stay-at-home orders issued throughout the country in response to the COVID-19 pandemic, which has made it “difficult for the defendant to collect and timely organize their billing information necessary to meet their burden to prove reasonableness of attorney fees.” (Case No. 3:18-cv-01518; March 31, 2020).
District of Delaware (Wilmington)
District Judge Richard G. Andrews
Pfizer, Inc., et al. v. Apotex, Inc., et al. – On April 15, 2020, the parties’ request to continue a previously issued stay was granted and the April 29th pretrial conference, as well as the bench trial scheduled for May 11, 2020 was continued to an undetermined date. (Case No. 1:18-cv-00795; April 15, 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 granted in part defendant’s request to modify the post-trial briefing schedule, ordering that all post-trial opposition briefs are due April 3, 2020. The court recognized that “further discovery may be necessary after briefing has concluded and/or following argument on the motions” but “disagree[d] that such discovery should occur before briefing can proceed. However, considering challenges and concerns relating to COVID-19, a slight modification to the schedule is appropriate.” (Case No. 1:19-cv-00742; March 27, 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[.]” (Case No. 1:17-cv-01616; April 23, 2020).
Middle District of Florida (Tampa)
District Judge James S. Moody, Jr.
Pierce Mfg., Inc., et. al. v. E-One, Inc., et. al. – The U.S. District Court for the Middle District of Florida in Tampa ordered, over plaintiffs’ objections, that the November 5, 2018 preliminary injunction be modified to allow defendant E-One, Inc. to sell its Metro 100 single rear axle quint during the pendency of any delay caused by the COVID-19 pandemic, and further ordered the terms governing the interim sales and the amount of damages, if applicable, that will be awarded for those interim sales. (Case No. 8:18-cv-00617, presiding before District Judge Thomas G. Wilson; April 8, 2020).
Northern District of Georgia (Atlanta)
District Judge Timothy C. Batten, Sr.
Acceleron, LLC v. Dell, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta continued the trial scheduled to begin on June 1, 2020 to August 1, 2020, due to COVID-19. (Case No. 1:12-cv-04123; May 4, 2020).
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 amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:12-cv-04123, presiding before District Judge Timothy C. Batten, Sr.; April 1, 2020).
Intellectual Sporting Goods, LLC v. StarPro Greens, Inc. – The U.S. District Court for the Northern District of Georgia in Atlanta sua sponte amended General Order 20-01 regarding Court Operations Under the Exigent Circumstances Created by COVID-19 and Related Coronavirus dated March 20, 2020, extending the court’s original 30-day continuance for all jury trials and any trial specific deadlines through and including May 15, 2020. (Case No. 1:19-cv-04161, presiding before District Judge Timothy C. Batten, Sr.; March 20, 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.” (Case No. 1:12-cv-06075; April 17, 2020 and May 7, 2020).
Western District of Michigan (Grand Rapids)
Chief District Judge Robert J. Jonker
Perrigo Company v. United States of America – On April 28, 2020, the U.S. District Court for the Western District of Michigan in Grand Rapids granted in part a Joint Motion by cancelling the bench trial set to begin on May 26, 2020. In their Joint Motion, the parties expressed concern that the trial cannot proceed safely on the current schedule and “[b]oth sides agree that the trial should not proceed in-person as scheduled.” The Court did not “share the pessimism of the parties regarding the ability to conduct a bench trial safely in late May and early June . . . [but it acknowledged] that having counsel travel from two hard hit metropolitan areas, and the need to work with witnesses coming from multiple out-of-town locations creates unique challenges.” Although the Court acknowledged having recently “gotten considerable practice with video hearing technology,” it was convinced a bench trial like this one could not effectively proceed by video. It would need to be an in-person trial, “in the Court’s view, to assure fairness, effectiveness and efficiency for the parties, the Court and the public.” In particular, the Court noted that credibility issues are easier with in-person testimony and it could not “imagine a trial where all witnesses were examined by remote video, particularly with the mass of exhibits in play here and the technical complexity of some of the issues.” As for rescheduling, the Court indicated it would address that later as its own post-Covid calendar takes shape, particularly given that all civil cases will have to wait for an anticipated backlog of criminal jury trials to clear. (Case No. 1:17-cv-00737; April 28, 2020).
Western District of Missouri (Kansas City)
Senior Judge Ortrie D. Smith
Enslein v. Di Mase et al. – The U.S. District Court for the Western District of Missouri in Kansas City granted in part and denied in part one of the defendant’s motion to stay execution of a $24 million judgment against him and others, ordering the defendant to post a $2 million bond despite arguments of coronavirus-related “extreme hardship”. The defendant argued, among other things, that he is unable to meet and consult with professionals to obtain a bond or discuss alternative options, and further pointed out that several federal agencies have suspended enforcement of collection actions during the COVID-19 pandemic. As part of its response, Plaintiff argued defendant had not established he was entitled to an unsecured stay, and instead, defendant’s inability to pay and the potential complexity of collection during the COVID-19 pandemic should weigh against an unsecured stay. (Case No. 4:15-cv-09020; May 4, 2020).
District of New Jersey (Trenton)
Magistrate Judge Douglas E. Arpert
Mitsubishi Tanabe Pharma Corp., et al. v. Sandoz Inc., et al. – On April 28, 2020, the U.S. District Court for District of New Jersey in Trenton granted the joint request by the parties for a two-week extension for submission of trial briefs and proposed findings of fact and conclusions of law, from April 30 to May 14, 2020, in light of the presiding Judge’s prior adjournment of the May trial in the case. In a joint letter submitted on April 22, 2020, the parties indicated that following their discussion at the final pretrial conference regarding the potential impact of the COVID-19 pandemic on the trial, the defendant agreed to an extension of the regulatory stay for 120-days from the conclusion of the trial and the parties jointly requested that the Court set the commencement of a six-day trial for some time in July 2020, or as soon as practicable thereafter in light of the COVID-19 pandemic. In a May 12, 2020 Letter Order, the Court granted a request to extend the deadline from May 14 to May 21, 2020, for the parties to submit pretrial briefs and proposed findings of fact and conclusions of law. In a May 19, 2020 Letter Order, the Court granted a further one week extension May 21 to May 28, 2020. On April 24, 2020, the Court Ordered the agreed upon extension of the regulatory stay from September 29, 2020, until 120 days from the conclusion date of the trial. (Case No. 3:17-cv-05319, presiding before Chief Judge Freda L. Wolfson; April 24, 2020 & April 28, 2020 and May 12, 2020 & May 19, 2020).
Southern District of New York (Manhattan)
Chief District Judge Colleen McMahon
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. – On April 23, 2020, the U.S. District Court for the Southern District of New York in Manhattan sua sponte notified the parties that the Court intended to move forward with the trial set to start on May 26, 2020, or within two weeks of that date, and it was “not prepared to wait until the world is back to normal to get it done.” The Court highlighted it was a bench trial, and such trials "are the one type of proceeding that can go forward, even during a pandemic." In particular, the Court noted in a bench trial it can take testimony in writing (as it usually does at bench trials) and listen to cross examination conducted remotely. In addition, the Court indicated “witnesses who are located in other countries and cannot travel to court can have their depositions submitted instead - and I am sure that all the really relevant witnesses were deposed.” On April 24, 2020, the parties jointly submitted a letter in response to the April 23 Notice to Counsel indicating that they were “prepared and wish to move forward . . . but current travel and business restrictions make the logistics of doing so on May 26 uncertain.” The parties requested that the start of the trial be adjourned until the week of July 6, 2020, however “recognizing the constraints of the Court” the parties also confirmed that they could be available in the middle of June but they noted “there still may be some restrictions on travel in place at that time.” In a handwritten memo endorsed order on April 28, 2020, the Court stated “[o]k, the trial is adjourned to July 6, 2020. The Court will schedule a teleconference in the near future to discuss trial logistics.” In a May 14, 2020 Notice To Counsel, the Court scheduled a conference call for May 20, 2020 to discuss any concerns about the trial, given the parties preference for a trial in person, and the likely possibility that “stay at home orders and travel restrictions will not be lifted by July 6 . . [and] that some or all of the testimony at [the] trial will have to be taken remotely.” The Court reiterated that it will “take direct testimony of witnesses under any party’s control in writing” and indicated that “the Court’s view [is] that cross examination via a video platform would allow [it] to make necessary credibility determinations.” The Court further stated that it was “not eager to hear that you don’t want to go to trial on your chosen date of July 6. We simply have to find a way to get this case tried.” In a May 28, 2020, Trial Procedures communication to Counsel the Court indicated that the entire trial will be “all remote” and that it will use TrialGraphix’s TRIALanywhere product for the trial. The decision to have all witnesses testify remotely was based on the draft protocols for Phase II re-entry which would require all individuals who traveled from abroad to quarantine for two weeks before being allowed to enter the courthouse. One of the proposals under consideration from the parties that was described as “eminently sensible” by the Court, was the shipping of sealed binders to witnesses. It was also being left to the parties to agree whether an attorney may be present with witnesses during their remote testimony, which might make it even easier to deal with exhibits. The Court stated it was open to an in-person real bench trial closing argument, if it were safe, with lead trial counsel coming to court after all the witnesses have been heard from, but it strongly discouraged bringing a lot of people to court for any such closing argument. (Case No. 1:17-cv-09922; April 23, 2020 & April 28, 2020, May 14, 2020 and May 27, 2020).
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. Notice - May 14, 2020
Ferring Pharmaceuticals Inc. et. al. v. Serenity Pharmaceuticals LLC, et. al. Trial Procedures - May 27, 2020
District Judge Gregory H. Woods
Au New Haven, LLC f/k/a Uretek LLC, et. al. v. YKK Corp. – On April 21, 2020, the U.S. District Court for the Southern District of New York in Manhattan sua sponte “adjourned sine die” a jury trial scheduled to begin on June 15, 2020, because it “does not anticipate that it will be able to conduct a jury trial in June 2020.” The court indicated that it will reschedule the trial when it has more information about “the timeline for the resumption of normal operations.” In providing further guidance to the parties, however, the court noted that, due to rescheduling also occurring in other matters as a result of the pandemic, it “does not anticipate that it will be able to schedule a trial to begin in this matter until sometime this winter at the earliest—more likely, the trial will not be rescheduled to begin until a date in 2021.” In a May 15, 2020 Text Order, the Court indicated that the final pretrial conference previously scheduled for 10:00 a.m. on May 28, 2020 will still proceed as a telephonic conference, to focus on the parties' pending motions in limine, and that the Court anticipates holding a second final pretrial conference closer to the date of trial. (Case No. 1:15-cv-03411; April 21, 2020 and May 15, 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. (Case No. 2:17-cv-01025; March 17, 2020 and May 19, 2020).
Eastern District of Texas (Beaumont)
District Judge Ron Clark
Barry v. Medtronic, Inc. – The U.S. District Court for the Eastern District of Texas in Beaumont granted two jointly filed motions, dealing with the resolution of issues between the parties concerning possible future infringement and damages that remained open after a jury trial and entry of the Final Judgment. In order to clarify the relief requested, the Court communicated with the parties by email “[b]ecause the current epidemic caused difficulties in arranging for a hearing, either live or by telephone or video, recorded by a court reporter.” (Case No. 1:14-cv-00104; April 22, 2020).
Western District of Texas (Austin)
District Judge Robert Pitman
Barry v. Medtronic, Inc. – The U.S. District Court for the Western District of Texas in Austin sua sponte issued a Supplemental Order Regarding Court Operations in response to the COVID-19 viral outbreak, continuing all jury trial start dates through May 31, with the date to be reset by the presiding Judge, but stating that the Supplemental Order does not continue any other pending deadlines except for the trial dates. In issuing the Supplemental Order, the Court indicated that "there have been several confirmed cases of coronavirus within the Western District of Texas” and it “is concerned with the health and safety of the public, Court employees, staff of other entities with whom Court personnel interact, litigants, including defendants in criminal matters, counsel, interpreters, law enforcement officials, and jurors, who must work in close quarters to hear evidence and to deliberate.” (Case No. 1:20-cv-00417; April 24, 2020).
Eastern District of Texas (Marshall Division)
Chief District Judge J. Rodney Gilstrap
Image Processing Techs., LLC v. Samsung Electronics Co., Ltd., et al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division continued the trial until June 1, 2020, granting-as-modified a motion for relief due to complications in securing the trial attendance of witnesses and corporate representative located in Korea amidst the coronavirus pandemic. Further, the court made clear that June 1, 2020 is a firm trial setting, regardless of whether or not the current travel restrictions on Korea remain in place:
“During this time, the Parties are to work diligently to ensure that both Parties are prepared to go to trial with or without the physical presence of witnesses identified in the Motion. To that end, Samsung is directed to take depositions of its Korean witnesses so that they can present those witnesses (sic) testimony in the best manner possible. These depositions may be taken through remote connections so that no one needs to travel to or from Korea. Furthermore, this continuance should give Samsung adequate time to select a U.S. corporate representative and fully prepare him/her to serve as its representative for the trial. Finally, Samsung should diligently use the time to prepare their in-house counsel for the time difference and take steps to ensure that real-time court reporting is in place so that they can effectively participate in the trial from Korea with their U.S. attorneys. IPT is expected to work with Samsung to the fullest extent possible to ensure that these issues are dealt with openly and professionally during the continuance granted herein so that this case is ready to go to trial on June 1, 2020, even if the current travel restrictions remain in place.”
(Case No. 2:20-cv-00050; March 12, 2020).
Western District of Texas (Waco)
District Judge Alan D. Albright
MV3 Partners LLC v. Roku, Inc. – The U.S. District Court for the Western District of Texas in Waco sua sponte set a telephone conference for May 13, 2020 during which the Court indicated that the trial date has been reset from June 1, 2020 to June 29, 2020, in light of the Supplemental Order Regarding Court Operations Under The Exigent Circumstances Created By The COVID-19 pandemic issued on May 8, 2020 by Chief Judge Orlando L. Garcia, and that the Final Pretrial Conference is postponed from May 20, 2020 until a later date in June at which time it will be held in person. The Court further indicated that the jurors will probably have voir dire the Thursday or Friday before the trial. According to a May 1, 2020 Minute Entry, there will be 8 jurors selected from a jury pool of 48 and the seating in the gallery will be 4 per bench. On April 8, 2020, the Court had previously denied defendant’s motion to continue the June 1 trial, stating that such a continuance would be premature as “the trial is still several weeks away.” In addition, the court issued a standing order on April 9, 2020 for all patent infringement cases in the post-Markman stage of litigation, acknowledging the “potential difficulties related to the COVID-19 virus that parties in patent cases may experience” and, thus, “is willing to consider all reasonable adjustments to the current orders to allow the parties to complete discovery…and file appropriate motions.” The court required only that the parties meet-and-confer first, further stating that it would give “great deference” to joint scheduling proposals. (Case No. 6:18-cv-00308; April 8 & April 9, 2020 and May 1 & May 4, 2020 and May 11, 2020).
SAS Institute Inc. v. World Programming Limited et. al. – The U.S. District Court for the Eastern District of Texas’s Marshall Division denied, without prejudice, the parties’ Joint Motion to Continue Trial Setting, requesting a 90-day extension to the jury trial – currently scheduled to begin with jury selection on July 6, 2020 -- due to travel restrictions stemming from the COVID-19 pandemic. The Court acknowledged “the need to protect parties, court staff, witnesses, corporate representatives, and practitioners during this crisis”, but felt the motion is premature “[g]iven the constant evolution of the pandemic” and related travel restrictions. In particular, The Court noted the evolving COVID-19 pandemic and related travel restrictions may very well change several times before the scheduled jury selection, hopefully in ways that may assuage the present concerns raised by the Motion. Nonetheless, the Court also noted that “[t]he parties are free to seek similar relief at a later date, if present impediments do not abate or are otherwise modified/lifted.” (Case No. 2:18-cv-00295; May 22, 2020).
Eastern District of Virginia (Norfolk)
District Judge Mark S. Davis
Jaguar Land Rover Ltd. v. Bentley Motors Ltd., et. al. – The U.S. District Court for the Eastern District of Virginia’s Norfolk Division granted the parties’ joint motion to extend currently pending deadlines in light of complications related to the COVID-19 outbreak, including agreeing to remove the trial date previously scheduled for October 13, 2020. The court found the “parties acted diligently and timely in making this joint request” and that good cause supported extensions in all deadlines. In a May 5 Order, pursuant to the General Orders in case 2:20mc7 re the outbreak of Coronavirus Disease 2019, the Rule 16(b) Scheduling Order was amended to reset the Final Pretrial Conference for February 5, 2021 at 11:00 a.m. and the Jury Trial for February 23, 2021 at 10:00 a.m. The Markman Hearing was held remotely on May 21, 2020 using ZoomGov. (Case No. 2:18-cv-00320; April 9, 2020, May 5, 2020 and May 21, 2020).
Senior District Judge Henry C. Morgan, Jr.
Centripetal Networks, Inc. v. Cisco Systems, Inc. – The U.S. District Court for the Eastern District of Virginia’s Norfolk Division denied defendant’s Motion Opposing Trial Entirely by Videoconference, filed in response to the court’s decision to hold the trial by Zoom's videoconference platform. In response to the pandemic, the United States District Court for the Eastern District of Virginia issued General Order 2020-09 (“Authorization to Use Video Teleconferencing Pursuant to the CARES Act”), providing temporary emergency video and teleconferencing for civil and criminal hearings, including the use of Zoomgov for remote proceedings, and General Order 2020-11 (“Public Access to Remote Hearings”), authorizing access to the press and public to listen by a toll free telephone line to proceedings held remotely during the pandemic. Defendant raised a variety of concerns with respect to the decision to proceed with the trial via Zoom, including security, its ability to effectively cross examine witnesses and the Rule of Sequestration. In particular, the defendant argued that the lack of security on the Zoom platform would jeopardize its confidential material which may be made available to the public during a video trial. However, the court rejected this argument because a trial in the courtroom would similarly be open to the public. The court felt any concerns regarding cross examination of witnesses were unwarranted because “both parties are required to disclose all exhibits, except those  used for purposes of impeachment, in advance of trial and therefore both sides will know what evidence is intended to be presented at trial…[and] are required to prepare an exhibit book.” With respect to the Rule of Sequestration, the court indicated that if called upon to do so, it would impose its usual limitation upon witness discussion of testimony with another witness or counsel discussing past testimony with the witness in advance of present testimony. The court also pointed to Local Rule 83.3 and noted that “the general prohibition on televising, recording or photographing any civil or criminal court proceedings remains in effect for remote proceedings.” Further explaining “that the operation of any video or audio recording device by any lawyer, litigant, participant or observing member of the public or press is prohibited during remote proceedings.” On April 27, 2020, the Clerk filed the approved Joint Pretrial Order. (Case No. 2:18-cv-00094; April 23, 2020 & April 27, 2020).
Public Access Information For Trial: Daily at 10:00 a.m. (EDT) starting on May 6, 2020
Teleconference Number: 1-866-390-1828
Access Code: 9231679
Pretrial Order - April 27, 2020
Northern District Of West Virginia (Clarksburg)
Senior District Judge Irene M. Keeley
Biogen Int’l GmbH, et al. v. Mylan Pharmaceuticals, Inc. – The U.S. District Court for the Northern District of West Virginia in Clarksburg denied plaintiffs' motion to continue the April 29, 2020 closing arguments in a bench trial during the viral outbreak preferring to proceed in-person rather than by video. The court noted that “[p]reference alone, however, is not enough to establish good cause.” It was further ordered that since the closing arguments will proceed by video, all binders or physical exhibits must be delivered to Chambers the day before the closing arguments. (Case No. 1:17-cv-00116; April 17, 2020).