Revisions to Patent Case Form Orders

Yes, in my spare time I compare version dates on form docket control orders on the court’s website. (Doesn’t everyone?) This morning I saw something move.

Judge Gilstrap’s form orders in patent cases on his website are, of course, revised from time to time. When we left for the holidays the current version was dated October 31, 2016. The new version, dated today, has two substantive changes – one dealing with response dates to expert and dispositive motions, and the second with timing for various pretrial events occurring after that. I have attached a redline comparing the prior version to the one posted this afternoon.

Summary judgment / Daubert response times

Previously the form DCO did not contain an explicit deadline for responses to dispositive or Daubert motions. They were calculated by the local rules, so the response could slide back a day depending on whether a motion was filed before or after 5pm on the deadline. See Local Rule CV-5(d). In addition, the response time itself could vary – it is 14 days for all motions except summary judgments, which are 21 days. See Local Rule CV-7(e).

The revision adds a new express deadline for responses two weeks after the now-combined deadline to file dispositive motions and motions to strike experts. With its included footnote the new provision reads:

* Response to Dispositive Motions (including Daubert Motions).
Responses to dispositive motions that were filed prior to the dispositive motion deadline, including Daubert Motions, shall be due in accordance with Local Rule CV-7(e), not to exceed the deadline as set forth in this Docket Control Order. [1] Motions for Summary Judgment shall comply with Local Rule CV-56.

[1]The parties are directed to Local Rule CV-7(d), which provides in part that “[a] party’s failure to oppose a motion in the manner prescribed herein creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion.” If the deadline under Local Rule CV-7(e) exceeds the deadline for Response to Dispositive Motions, the Response for Dispositive Motions controls.

First of all, the deadline for motions to strike experts is no longer staggered two weeks after the dispositive motions deadline – all such motions are now due on the same date.

Second, with two exceptions, the rule doesn’t actually change anything, but instead references provisions in the rules. CV-7(e) keeps calculating response times, summary judgment motions keep having to comply with CV-56, and it’s possible some parties were unaware of the effect of not filing a response under CV-7(d), so that rule is explicitly called to parties’ attention.

The first of the two exceptions is a minor one. It is that if the motions are filed after 5pm on the deadline, they now won’t get the effect of the extra day in CV-5(d), and will instead be due 14 days after the motion was filed, period.

The second exception is a big one. The EDTX local rules were revised a couple of years ago to provide a longer response time of 21 days for summary judgment motions. Local Rule CV-7(e). The new schedule sets a hard response deadline of 14 days after the deadline for filing for such motions. Only if the summary judgment motion is filed before the deadline would the response time expand up to the 21 days available under CV-7(e).

Yes, we’re thinking the same thing.

The new deadline is an asterisk date, so parties will need good cause to propose a different date.

Pretrial deadline changes

The second major change in the order is that it pushes closer to the trial setting (after 27 years practicing law I still don’t know there is consensus on whether that’s “moving up” or “moving back” so I’m just saying it’s farther from trial) of all of the dates that are tied to the trial setting through a certain point. After that point it pushes the remaining dates away from the trial setting. All my discussion below is assuming the trial date is in the same place (typically 13-14 months from scheduling conference to trial). Here’s the effect:

Expert discovery

As reflected in the attached redline, parties will have two more weeks for expert disclosures, three more for rebuttal experts (thus increasing the time for rebuttal witnesses from two weeks to three), and three more for expert discovery.

Dispositive/Expert motion practice

Parties will have four more weeks to file dispositive motions, and two more for expert motions, thus putting them on the same schedule, as noted above. The new response deadline means that, assuming motions are filed on the last day, responses will be two (expert) or one (summary judgment) weeks later than would have previously been the case.

Pretrial Filings

Beginning with pretrial disclosures, however, the changes go the other way, with pretrial disclosures through the pretrial conference one week earlier in the schedule than was previously the case. This will end in the pretrial conference being five weeks before jury selection, instead of four.

Net Effect

So with some dates moving back four weeks and others moving up a week, something is being compressed – what is it?

There used to be a four week spread between the responses to Daubert motions (which were a week after the responses to dispositive motions) and the enhanced pretrial disclosures in the order. By enhanced, I mean that the order requires in addition to the FRCP 26(c) requirements of lists of live witnesses, exhibits, and witnesses by deposition, the parties must provide the deposition designations themselves. Assuming replies and surreplies on those motions, than would mean the final briefing – Daubert surreplies – would be due two weeks before those enhanced pretrial disclosures.

Now the replies on all dispositive motions and expert motions are due the same day as these pretrial disclosures, and the surrreplies will hit the week between disclosures and objections to disclosures.

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