More Proportionality; Motion to Compel Sales Information Granted in Part

This is an order resolving a motion to compel on damages issues in a patent case.  At issue was whether the Defendants, a parent and a subsidiary, were required to provide financial data on infringing sales made by the parent to entities other than the named sub, and whether Defendants were required to provide financial data for certain additional products.  The Court granted one but denied the other, citing the “p” word and providing a useful list of things not to do to preserve a claim for discovery.

A Streetcar Named ….

It often happens when walking with a visiting lawyer or client to or from the federal courthouse in Marshall that I get a funny look when we cross the bricked-up tracks on the north side of the old courthouse.  “Why are there train tracks in the middle of the square?” I’ll get asked.  I explain that those aren’t train tracks.  They’re from the old streetcars that used to run from the Marshall train station south the few blocks to the square. At the courthouse they split and from there went out half a dozen blocks or so to the neighborhoods east and west of downtown.
The problem is that until today I’ve never been able to find a decent photo of the trolley cars.  But here they are in a “History From Our Files” from the Marshall paper this morning, shown looking north from the steps of the then-new county courthouse shortly after 1900.
The “telephone” building on the right is now Telegraph Park, but was still there when I was little – my grandmother clipped poodles in it.  And the block of buildings on the left were razed in the mid-70s.  The reason I know that is that my mother took me out of school to watch them being torn down.  Why that was a “take Michael out of school to watch” event I never understood. But then, it was also a family event to watch concrete being poured back then – my initials are still in the sidewalk next to my office from when the concrete was patched in 1971 in front of my grandfather’s store, and he insisted she bring me out so I could put my initials in.
But immediately behind those buildings under the arrow is what was then the Marshall “opera house” which I’ve written on previously . “Opera house” was the term used in rural Texas for the places where visiting troupes of actors, singers, musicians and other entertainers played at stops up and down the railroad lines.  For example the Sherman “opera house” is now our firm’s offices in Sherman, as the above post notes.  It looks a bit different now, as shown at the dedication of the Sherman courthouse for Judge Brown a few years back.  Candidly, I preferred its original appearance, shown at right when it was a third floor and two towers taller.
But I digress.  Patent practitioners will recognize the building being pointed out as Pazzeria by Pietro – which was formerly the Blue Frog restaurant.

Proportionality Finally Gets Used in a Discovery Order

Let’s say you defeat an adversary in litigation, and you’re looking for assets from which a judgment can be satisfied.  Can you get discovery into your former opponent’s disposition of assets?  The answer is yes, but not prior to when you made your claim.  Why? Because it would not be proportional to the needs of the case. This order makes that finding, but then defines what discovery would be “proportional” under the circumstances.

Naturalization Ceremony in Marshall

This morning saw the first naturalization ceremony in the Marshall courthouse in quite some time.  Judge Gilstrap conducted one in Tyler a couple of months back, but it’s not often they make it all the way to Marshall.  It was standing room only, with a monitor and chairs in the hallway for the visiting schoolchildren and overflow guests, with the Daughters of the American Revolution (DAR) chapter that helps put the event on at counsel table.  The Marshall High School Junior ROTC provided the color guard, and ETBU provided a choral group for the national anthem and “America the Beautiful”.  As my old trombone choir professor used to say, there wasn’t a dry seat in the house.  Or maybe that was just me.  Anyway, for an outfit without trombones they were pretty good.

Judge Gilstrap spoke on the obligations and privileges of citizenship, and shook hands with the new citizens (from thirteen countries) after they received their certificates from the DHS representatives, and an American flag from the DAR. The local bar association provided lunch for the new citizens and their families at Miguel’s across the square, and the Harrison County Elections Office had a table for new citizens to register to vote.

Naturalizations locally are decidedly celebratory events with a great deal of participation by the community.  It was a good day to be an American and welcome our fellow citizens.

Means Plus Function Terms Indefinite for Lack of Corresponding Structure

Reading Markman orders is often like watching soccer while being an American.  Only rarely does someone actually score a goal. This Markman is a good example.  Dozens of pages of solid analysis, but it’s only at the top of p. 32 and again a few pages later  that goals sneak up on you – when the Court noted that these were means plus function terms, and the lack of corresponding structure rendered the three terms indefinite. 

Improper Venue Motion Denied, But Points for Creativity (Deducted, But Still)

This case has an interesting procedural history with respect to venue.  Five months after TC Heartland the defendant filed a Section 1404 motion, but didn’t challenge venue as improper.  That motion was denied, as was the mandamus petition challenging it.  Ten months after the mandamus denial, after a change in lead counsel, the defendant filed a motion asserting improper venue.  The order on that motion addresses several issues, including venue over foreign defendants, the geographic jurisdiction of the court, creative uses of the marking statute, and even more creative arguments regarding venue waiver.

Hotline calls

One of the unique characteristics of the Eastern District’s 1991 CJRA Plan was the creation of a discovery hotline which allows litigants to get a ruling from a judge in real time on a discovery dispute.  This latest ruling arises, as most do, from a dispute over whether a specific set of questions during a deposition was admissible.

EDTX claim constructions in SEVEN v. Google out; comparison to NDTX constructions

I posted the other day that Judge Lynn’s constructions from the recent joint claim construction hearing in SEVEN v. ZTE were out.  Now the constructions for the EDTX cases by SEVEN against Google & Samsung by Judge Gilstrap are out as well.  This feels just like checking your lottery numbers, doesn’t it – will the constructions match?