“Proportionality” in the EDTX – Recent Activity

Readers may recall that last fall I did an extensive post on the history of discovery standards in the Eastern District of Texas, beginning with Dan Quayle (no, that’s not a joke). At that time, an extensive survey of 2016 Eastern District of Texas cases – including patent and nonpatent cases, as well as published in unreported opinions, indicated that with one Implicit exception (now that is a joke) no case appeared to apply the new “proportionality” test added to FRCP 26 by the 2015 amendments to the Federal Rules of Civil Procedure. A few cases quoted the rule and ruled specific discovery in or out, but only Judge Gilstrap’s Implicit opinion explicitly referenced the permitted discovery as being proportional to the needs of the case under the new standard.

At the time I testified before the advisory committee on the 2015 amendments, and through their enactment, I was of the opinion that the addition of the proportionality test was going to provide parties with a significant tool to delay or frustrate discovery previously considered permissible, especially in smaller cases, and in particular in the “bulk filer” or “high-volume” plaintiff cases, requiring parties to repeatedly seek court assistance to obtain discovery. But as the absence of court decisions applying the proportionality test indicates, that has not been the case, and parties have been able to resolve any questions regarding the proportionality of discovery without needing to resort to the court.

But when they do, it is worth noting. Recently, an Eastern District of Texas judge addressed a discovery issue in a patent case and explicitly referenced the proportionality test in his decision, as I analyze below.

Attorney Prohibited From Filing New Patent Cases for 120 Days as Rule 11 Sanction

I posted several days ago on the show cause order Judge Gilstrap issued with respect to an attorney’s “systematic carelessness” in filings on behalf of the plaintiff in the Ruby Sands litigation.  The full post is available to subscribers here. In an order memorializing the rulings at the hearing, Judge Gilstrap suspended the attorney’s ability to file new cases for 120 days, with the following language:

“Mr. Zimmerman’s repeated acts of negligence in his practice before this Court—as further expounded upon in the Court’s Order to Show Cause and on the record at the hearing – compel the Court to conclude that some targeted action should be taken to prevent further lapses in adequate compliance with the Federal Rules of Civil Procedure, the Local Rules of Practice and the direct instructions of the Court. Such is necessary to support and uphold the integrity of this Court. While Mr. Zimmerman admirably accepted fault at the hearing and made no excuses for his conduct, the fact remains that the instances which precipitated the Court’s Order to Show Cause nonetheless occurred and should be addressed.”

Accordingly, pursuant to Rule 11 of the Federal Rules of Civil Procedure the Court ordered that Mr. Zimmerman be prohibited from filing any new cases within the Eastern District of Texas for 120 days from the date of the hearing on April 26, 2017. The prohibition expires automatically, and does not affect Mr. Zimmerman’s ability to represent clients in cases currently pending.

Verdict in antitrust case

The last of last week’s Marshall juries came back this week with a $44 million verdict in the antitrust case in Judge Trey Schroeder’s court.  The case involved claims by plaintiffs who serviced or refurbished GE anesthesia machines, and as suits a seven day jury trial involved a 32 page verdict, analyzed below.

Congratulations again to plaintiff’s local counsel, and, uh, well, again, there’s no one local to send sympathies to on the losing side.

Uropep v. Lilly verdict

I am a few days late getting Friday’s verdict in Uropep v. Lilly by a Marshall jury in visiting Federal Circuit Judge Bryson’s court up, but I have a good excuse – we were chaperoning our 8th grade twins’ class trip to DC where they had their picture taken outside the Federal Circuit’s building (hey, it’s technically true).

The jury found induced infringement, that none of the invalidity claims were proved by clear and convincing evidence, and set damages at $20 million.  (More gratuitous shots of my kids to illustrate only remotely related legal concepts to follow).

Second jury (employment discrimination) is back

A Marshall jury in Judge Gilstrap’s temporary courtroom in the historic county courthouse returned a verdict in favor of a Kilgore mail carrier yesterday in a civil rights employment case, determining that she had been fired for reporting that a black supervisor was mistreating the white female employees.  The trial began on Wednesday and finished yesterday.  The jury awarded $250,000 in damages for mental and emotional distress. As expected, that’s two down, with the antitrust case before Judge Schroeder resuming next week.

First jury (patent infringement) is back

The Marshall cases in trial before juries this week are actually an antitrust, an employment, and a patent case.  The patent case before Judge Bryson came back with a verdict for the plaintiff of $20 million Friday evening, breaking the 3-3 tie we’ve had thus far this year in patent verdicts.  Congratulations to the plaintiff’s local counsel, and … well defendant didn’t have any local counsel I can send out sympathies to. The case is one that I’ve posted on a couple of times, involving 

Triple-tracking jury trials

“Time is the quality of nature that keeps things from happening all at once.  Lately it doesn’t seem to be working.” 

Anonymous.

It’s a busy week in federal court practice in Marshall this week, with Judge Gilstrap, visiting Judge Schroeder from Texarkana and visiting Judge Bill Bryson from the Federal Circuit all conducting jury trials, forcing Judge Payne having to run up to Texarkana yesterday to find an available courtroom for a bench trial.  Not all are patent cases – there’s at least an antitrust in there somewhere, as well as a trademark dispute.

When we have three jury trials going on, one of the judges decamps across the street to the historic 1901 Harrison County Courthouse,
which the county makes available for overflow trials (I had three patent trials in it summer of 2012, and it’s an incredible space to get to work in).  

As the photos show, it’s obviously primitive accommodations, but we make do.

In addition, the timing worked out for all the judges to make last night’s meeting of the T. John Ward Inn of Court at our usual location, the Country Tavern outside Kilgore, where we heard from former U.S. attorney Malcolm Bales (who took the picture at left of the somewhat perplexed patent lawyers listening to his talk about these “criminal” cases they’ve heard about on TV).  Great stories and insights on his 29 years at the Department of Justice.

But the high point of the evening for me was when Judge Bryson was quoted as having analogized the job of a trial judge to fighting your way through a jungle filled with terrifying beasts, and his day job as an appellate judge as being better analogized to fighting your way through a natural history museum.

The bench trial finished yesterday, two of the jury trials should finish today, and Judge Schroeder’s is expected to continue into next week.

Clash of the 101 Motions: Motion to Dismiss Claims Versus Motion for Summary Judgment as to 101 Defense

Although most 101 defenses are raised via motions to dismiss under 12(b)(6), a few are brought under 12(c), and more than a few are either filed in or converted to the context of summary judgment.  But this case raises an interesting twist with the defendant seeking dismissal on 12(b)(6) grounds and the plaintiff seeking summary judgment that the 101 defense is without merit.  So let’s see how that worked out for them.