Delaware

Court Cites Risk of Competitive Misuse to Deny Modification of Protective Order

Order Denying Motion to Modify Protective Order, PhishMe, Inc., v. Wombat Security Technologies, D. Del. (September 18, 2017) (Judge Christopher J. Burke)

As demonstrated by Judge Burke’s order, courts are reluctant to alter protective orders that have been in place for months and were specifically negotiated in an effort to protect against inadvertent disclosure and competitive misuse of confidential information. This is especially true when the parties are direct competitors and have capable outside counsel to manage the litigation.

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District of Delaware “Clips”- Off Venue-Discovery for Medical Device Company but Allows It for Pharmaceutical Company

Boston Sci. Corp. v. Cook Grp., Inc., No. 15-980-LPS-CJB, 2017 U.S. Dist. LEXIS 146126, at *2 (D. Del. Sep. 11, 2017); Bristol-Myers Squibb Co. v. Mylan Pharm., Inc., No. 17-379-LPS, 2017 U.S. Dist. LEXIS 146372, at *3 (D. Del. Sep. 11, 2017)

In the wake of the Supreme Court’s TC Heartland decision, District of Delaware Chief Judge Stark recently decided two venue transfer motions in patent cases that may have far-ranging implications for future patent litigation in Delaware. In one case, he ordered further discovery on the appropriateness of venue in the other, given the past litigation conduct of the defendant. In the other, he transferred the case out of the district. These decisions may be especially important in Hatch-Waxman cases where generic drug companies lack a corporate presence in Delaware but previously have sought to challenge a patent under that statute. READ MORE

Beware of Firing Your Own Witness Prior to Trial

Orders Granting Certain Motions to Exclude Testimony, Greatbatch Ltd. v. AVX Corp. et al., D. Del. (July 20, 2017) (Judge Leonard P. Stark)

Judge Leonard Stark recently decided several pretrial motions in this medical device patent infringement suit leading up to next month’s jury trial. In the process, he reiterated certain standards for allowing witnesses to testify at trial that future parties should keep in mind.

In one Order, Judge Stark granted Plaintiff Greatbatch’s motion to preclude Defendant AVX from presenting at trial the testimony of a former employee through his deposition. That former employee—Dr. Panlener—had been an employee-turned-consultant of AVX and testified at length in deposition. However, AVX fired him after his depositions, and Dr. Panlener thus became unavailable to testify live at trial. Greatbatch moved to exclude his deposition testimony at trial. Judge Stark granted the motion, finding that it would be unfair to permit Dr. Panlener’s testimony to be used at trial since Greatbatch “has had no opportunity to question him regarding his termination” by AVX. Judge Stark did not ultimately conclude whether AVX “procured” Dr. Panlener’s absence by terminating the relationship, which, under the Federal Rules, would prevent usage of his testimony. But he disagreed with AVX’s contention that it is “entitled” under the Rules to present the deposition testimony and kept it out based on “the Court’s discretion to manage the trial in a manner that is fair to both sides and consistent with all other applicable rules.” READ MORE

TC Heartland – One Month Later Delaware, Texas, California and Illinois Courts Most Popular Venues

We previously reported on the early impact of the Supreme Court’s decision in TC Heartland based on the first few weeks of new filings. (For a summary of the TC Heartland opinion and its implications, click here.) It has now been one month, and based on the filing data for the month since TC Heartland as well as historical data since the beginning of 2016, we now have a better sense of how things have changed and how things may look in the future. Using data obtained from Docket Navigator, we compared filings in the month since TC Heartland came down on May 22 with filings earlier this year and also for all of 2016. READ MORE