Yesterday, the District Court adopted new default standards, the Default Standard for Discovery, including Discovery of Electronically Stored Information ("ESI"), and the Default Standard for Access to Source code.
Default Standard for Discovery, Including Discovery of Electronically Stored Information
On December 2, 2011,the Federal Circuit granted a petition for a writ of mandamus reversing the District of Delaware’s denial of a motion to transfer venue. In re Link_A_Media Devices Corp., Misc. Doc. No. 990 (Fed. Cir. Dec. 2, 2011). The Court of Appeals ordered the District Court to transfer the case to the Northern District of California, finding that the exacting standard for a writ of mandamus had been satisfied.
In Marvell Int’l v. Link_A_Media Devices, C.A. No. 10-869-SLR (D. Del. June 8, 2011), a Bermuda plaintiff brought suit against a defendant incorporated in Delaware. The District Court denied defendant Link_A_Media Devices’ motion to transfer. The court found that transfer was not warranted in part because “the plaintiff’s choice of forum is still of paramount consideration.” Id. at 3. The court also stated that “because [the defendant] is a Delaware corporation, it has no reason to complain about being sued in Delaware” and noted that it was not “persuaded by [the defendant’s] arguments regarding convenience.” Id. at 4-5. (Read more about Judge Robinson’s denial of the motion to transfer here.) The Federal Circuit, however, granted mandamus and ordered transfer. The Federal Circuit specifically held that “the district court placed far too much weight on the plaintiff’s choice of forum.” In re Link_A_Media Devices Corp., Misc. Doc. No. 990, at 4 (Fed. Cir. Dec. 2, 2011). The Federal Circuit also found that the district court’s “heavy reliance on the fact that [the defendant] was incorporated in Delaware was similarly inappropriate” and that the “district court also erred when it found that consideration of the public interest factors did not favor either forum.” Id. at 5-6.
Earlier this year, the Federal Circuit denied a petition for a writ of mandamus in In re Xoft, Inc., Misc. Doc. No. 983 (Fed. Cir. Aug. 19, 2011). In that case, New York and German plaintiffs brought suit against a defendant incorporated in Delaware. Judge Stark accepted Magistrate Judge Thynge’s report recommending that defendant Xoft’s motion to transfer to the Northern District of California be denied. Carl Zeiss Meditec, Inc. v. Xoft, Inc., C.A. No. 10-308-LPS-MPT (D. Del. Mar. 30, 2011). Judge Thynge found that the scales were not sufficiently tipped in favor of transfer where Delaware was the plaintiff’s choice of forum, the defendant was incorporated in Delaware, and the location of witnesses and evidence were neutral or weighed only slightly in favor of transfer. Judge Stark agreed with this recommendation and rejected Xoft’s “proposition that Judge Thynge placed too much weight on the fact that Xoft is incorporated in Delaware and too little weight on the fact that Zeiss’s headquarters is in Northern California.” Id. at 2. Judge Stark found that “Judge Thynge thoughtfully explained that the convenience of witnesses and location of sources of proof -which are considered only to the extent that they are ‘unavailable’ - were either ‘neutral’ or weighed ‘only slightly in favor of transfer’” and “made clear that, in the Third Circuit, a plaintiff s choice of forum -which Xoft concedes is a ‘paramount consideration’ - should not be lightly disturbed.” Id. at 3. (Read more about Judge Thynge’s denial of the motion to transfer here.) The Federal Circuit considered the argument that “the district court placed too much emphasis on the plaintiff’s choice of forum” and refused to grant mandamus. See In re Xoft, Inc., Misc. Doc. No. 983, at 3 (Fed. Cir. Aug. 19, 2011). The Federal Circuit specifically ruled that “[i]n the Third Circuit, that choice is afforded considerable weight and should not be lightly disturbed. The district court properly considered the relevant factors for a transfer motion and determined that the factors did not strongly favor transfer.” Id.
Continue reading "Recent Mandamus Rulings from the Federal Circuit in Delaware Cases" »
On November 3, 2011 the District of Delaware judges signed an Order Relating to Utilization of Magistrate Judges. Among other things, the Order kicked off a one year Pilot Project “to evaluate Magistrate Judge utilization.” As part of the Pilot Project, the Clerk of the Court will randomly assign cases to Magistrate Judges. These matters will not initially be assigned to a District Judge and the Magistrate Judge will "be responsible for all pretrial management of the case, including determination of all nondispositive motions and scheduling." Within 60 days from assignment of the Magistrate Judge, the parties may consent to Magistrate Judge jurisidiction by filing Form AO85. If they consent, the case will remain assigned to the Magistrate Judge for all purposes, including trial. After 60 days, if the parties do nothing, or if a case dispositive motion is filed within that time, the case will be randomly re-assigned to a District Judge. These cases, however, will be eligible for referral back to a Magistrate Judge for discovery purposes, ADR or for case management through case dispositve motions. There are categories of cases that will not be assigned to a Magistrate Judge as part of this Pilot Project, including patent cases in which one or more “related” case is pending. See Standing Order, section D. As always, parties to a matter not directly assigned to a Magistrate Judge may also consent to Magistrate Judge’s jurisdiction by filing the Consent Form (Form AO85).
The Standing Order also clarified the procedure for objecting to Magistrate Judge Rulings and Recommendations. See Standing Order, section C.
Continue reading "New Standing Order Regarding Utilization of Magistrate Judges" »
Earlier this month, the ABA Journal began accepting nominations for its annual list of the 100 best legal blogs (“blawg”). They are accepting “Amici Forms” where you can nominate a blog that you read regularly and you think others should know about. The form is extremely simple and aside from some information about the person making the nomination, asks only “Why are you a fan of this Blawg?” Nominations must be submitted by Friday, September 9.
The Delaware IP Law Blog was the first IP Blog in Delaware and we work to keep you up to date with the latest decisions and news from the district court in an unbiased, yet informative way. Although our blog covers only a specific region, our readers span the globe and share one thing – an interest in some of the most interesting and important decisions in intellectual property.
A link to the amici form is provided below.
Yesterday, Christopher J. Burke was officially appointed as the newest U.S. Magistrate Judge for the District of Delaware. The full order is below.
Continue reading "Magistrate Judge Burke Appointed on August 4, 2011" »
The District Court announced yesterday that Christopher J. Burke, Esq. has been chosen as the newest Magistrate Judge for the District of Delaware. Christopher Burke fills the vacancy left by Judge Stark when he was elevated to fill the vacancy left by Judge Jordan. Mr. Burke is currently an Assistant United States Attorney for the District of Delaware and the chair of the Delaware Chapter of the Federal Bar Association's Federal Trial Practice Seminar.
A link to the District Court announcement is below.
http://www.ded.uscourts.gov/
In Shire LLC v. Teva Pharms USA, Inc., C.A. No. 10-329 (D. Del. May 12, 2011), Judge Dalzell, sitting by designation due to the judicial vacancy in the District of Delaware, stayed all proceedings pending confirmation of the President's nominee to fill the vacancy -- Richard G. Andrews.
In an order dated April 8, 2011, after learning that the 30 month stay in the case was reaching its end, Judge Sue L. Robinson issued a sua sponte injunction of several generic defendants that prohibits the defendants from launching generic versions of the drug at issue until the court issues its opinion in the case. In Re Cyclobenzaprine Hydrochloride Extended Release Capsule Patent Litigation, C.A. No. 09-MD-2118-SLR, Order (D. Del. April 8, 2011).
Continue reading "Judge Sue L. Robinson: Sua Sponte Enjoins Generics" »
Sadly, we say goodbye to one of the Delaware IP Law Blog's co-creators and authors, Andrew Lundgren, as he leaves YCST to start a new path in his legal career as in-house counsel. Andrew played a pivotal role in the creation and maintenance of the blog and has authored countless posts since the blog's first day back in September 2006. I know I can speak for all of us when I say he will be sorely missed. We wish Andrew all the best in his new endeavor!
