Eastern District of Texas Federal Court Practice

New Local Rule Requires Redaction of Personal Information

On April 15, Chief Judge Heartfield signed General Order 04-10, which adds new section (c) to Local Rule
CV-10. The new rule requires parties to refrain for using where possible, and partially redact where not possible, the following information from documents filed with the court: (1) Social Security numbers; (2) names of minor children; (3) dates of birth; and (4) financial account numbers.
The change is a result of a recent Judicial Conference policy which created this requirement. Notably, the Judicial Conference did not seek to put this requirement into the federal rules, but merely enacted it as a "policy" so it has never been through any form of notice and comment. With respect to redacting the names of minor children, it is also worth noting that FRCP 10(a) requires parties to include the names of parties in the caption of the complaint.

Download 04-10.pdf

Court enforces parties' agreement to extend expert report deadlines in medical malpractice case

Barkely ex rel. Sims v. Senior Living Properties, 2004 WL 831139 (NO. 6:04-CV-06)
Judge: Davis
Division: Tyler
Date: April 18, 2004
Holding: Defendants' Motion to Dismiss and Motion for Defense Costs DENIED
COMMENTS:
This is a medical malpractice case. Defendants asked the court to dismiss the case and award them attorney's fees and costs as sanctions against Plaintiff for failing to provide an expert report against each defendant health care provider within the time mandated by the statute ( Tex.Rev.Civ. Stat. art. 4590i, § 13.01). Judge Davis noted that the plaintiff claims, and the defendants do not deny, that the parties agreed to extend the expert report deadlines, as section 13.01(h) of the statute expressly permits. Although the extension was not signed by the defendant, as is required for the extension to be enforceable under the statute, Judge Davis held that the lack of a signature it does not preclude a federal court from enforcing an agreement that is not signed by both parties. "The Court is not aware of," Judge Davis wrote, "and Defendant has not presented, any rule or jurisprudence that allows an attorney in federal court to evade pretrial tolling agreements the attorney has entered into simply because the attorney did not sign a written memorialization of the agreement. The Court is not inclined to create such a rule."

Motion for Class Certification and "Composite Certification" Denied

Corley v. Entergy Corp., 220 F.R.D. 478 (NO. 1:98-CV-2006, 1:98-CV-2054)
Judge: Schell
Division: Beaumont
Date: April 14, 2004
Holding: Plaintiffs' Motion for Class Certification DENIED.
COMMENTS:
This case arises out of complaints over the Defendant's operation of a fiber optic cable network. Judge Schell found that the case satified the four elements of the test for certfication in FRCP 23(a), but that it did not satisfy the requirements of either of the proposed alternatives under FRCP 23(b). Specifically, the court found that the Rule 23(b)(3) requirement of predominance and superiority were not met. The plaintiffs also asked the court to certify the class under Rule 23(b)(2) on liability and Rule 23(b)(3) on damages, a practice referred to as "composite certification." The court declined, noting that even composite certification requires the class to meet the predominance requirement, and for several reasons, that requirement was not met in this case.

Bankruptcy Court's Reduced Award of Fees & Expenses Affirmed

In re Advanced Microbial Solutions, L.L.C., 306 B.R. 915, 2004 WL 583080 (NO. CIV.A.4:03-CV-163, 01-44831)
Judge: Clark
Division: Sherman
Date: March 5, 2004
Holding: Bankruptcy court's ruling on fee application filed by debtor's attorney AFFIRMED.
COMMENTS:
This is an appeal of a bankruptcy court's ruling on an attorney to a Chapter 11 debtor-in-possession's application for allowance of fees and expenses. The Bankruptcy Court awarded fees and expenses, but in a reduced amount. Judge Clark held that: (1) where the court had approved attorney's retention at his normal billing rate, the, bankruptcy court, in ruling on fee application, had to use the "lodestar" approach; (2) presentation of evidence, in form of affidavit or live testimony, as to attorney's reasonable hourly rate (which was not done in this case) was fundamental to fee application; (3) the court's decision to make deduction in expenses requested for computer research was not an abuse of discretion; and (4) the "fast track" nature of case was not an "unusual circumstance," such as would permit attorney to be reimbursed for money spent on expedited courier services.
"Applications for attorney fees are not rocket science," Judge Clark concluded, "and should not be the subject of extensive satellite litigation. In 11 U.S.C. § 328, Congress has provided a means for an attorney to propose clear terms and conditions of employment. If these are expressly approved by order of the bankruptcy court, the attorney will be compensated, as expected, in the absence of unanticipated developments which make the terms improvident."

Court awards $5.65 Million in Fees And Expenses Against Losing Defendant in Patent Case

Microtune (Texas), L.P. v. Broadcom Corp., 2004 WL 716697 (NO. 4:01CV23)
Judge: Brown
Division: Sherman
Date: March 18, 2004
Holding: Request for Award of Attorneys Fees GRANTED
COMMENTS:
This is a patent infringement case, in which the jury found that the defendant willfully infringed the plaintiff's patent dealing with integrated television tuners, and that the patent was valid. The parties had stipulated as to the amount of the damages, but the plaintiff sought enhanced damages, interests and attorneys' fees due to the finding of "willfulness" under 35 U.S.C. § 284-85. In a previous order (2003 WL 23326002 - see "Enhanced Damages Awarded in Patent Case" post below) Judge Brown held that enhanced damages were appropriate, that interest should be awarded, and that attorneys' fees should be awarded and the amount requested was reasonable, but ordered that the billing records be submitted for in camera review before making a final fee award.
In this order, Judge Brown determined that prevailing plaintiff Microtune should be awarded its reasonable attorneys' fees in the amount of $5,157,658.25 (a reduction of approximately $500,000 from the amount requested) and litigation- related expenses in the amount of $500,168.31. Interestingly, the Court noted that the defendant in the case incurred legal expenses of over $11 million. Judge Brown's opinion is an exhaustive application of the standards for awards of attorneys' fees, and may be useful for practitioners researching these issues.

Summary Judgment Granted on Harassment/Overtime Claims

Harvill v. Westward Communications, LLC, 311 F.Supp.2d 573 (NO. 6:02 CV 511)
Judge: Steger
Division: Tyler
Date: March 25, 2004
Holding: Defendant's Motion for Suymmary Judgment GRANTED.
COMMENTS:
Plaintiff alleged that she was sexually harassed at work and was denied overtime pay. Judge Steger granted the defendant's motion for summary judgment, holding that: (1) the alleged conduct was not so severe and pervasive as to alter terms and conditions of employment; (2) the employee unreasonably failed to take advantage of the employer's corrective opportunities; (3) the employer was not liable under the Fair Labor Standards Act for failure to pay overtime because it did not have constructive knowledge of any failure to pay employee overtime; and (4) the employee failed to exhaust administrative remedies as to her constructive discharge claim.

Judge Ward adds new discovery order language

Judge Ward recently added a new section 9(a) that he may (ed. note - read "will") incorporate into the discovery orders in his cases. As Eastern District practitioners know, Judge Ward's discovery orders often do not allow requests for production, and instead direct that document production be made via disclosure of all documents that are "relevant to the pleaded claims and defenses." These new procedures allow the recipient of the documents to identify by letter any perceived insufficiencies in the production, and requires that the producing party provide a written explanation for why the documents are not being provided within fourteen (14) days of the letter, after which a motion to compel may be filed.
The new provision can be viewed by clisking on the link below.

Download file

Taxpayer's Suit Dismissed Due to Limitations

Killingsworth v. U.S., 2003 WL 23112767 (NO. 5:01-CV-330)
Judge: Folsom
Division: Texarkana
Date: November 24, 2003
Holding: Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction DENIED
COMMENTS:
Plaintiff appeared pro se and disputed the IRS' assessment of unpaid taxes against him. Defendant filed a motion to dismiss based on limitations. The Court found that the two year statute of limitations applied, that there was no agreement to extend the filing deadline, that equitable tolling did not apply, and that administrative actions subsequent to the statutes of limitations deadline did not extend the deadline. Accordingly, the motion to dismiss was granted.

Judge Davis Modfies Local Patent Rule 4-5

Judge Davis yesterday announced a modification to his local patent rules, consisting of the insertion of a new section (d) under Patent Rule 4-5 "Claim Construction Briefs" (click below to see the new provision). The new provision requires the parties to jointly submit a claim construction chart in electronic format (WordPerfect) 10 days before the Markman hearing with columns for the disputed terms, the parties' proposed constructions, and the Court's instruction (to be added by the Court later, obviously). Judge Davis accords the parties "substantial latitude" in the format of the chart, and suggests that parties consult appendices to his prior claim construction opinions, both published and unpublished. (An example is in Retractable Technologies v. New Medical Technologies, 2004 WL 435054, NO. 4:02-CV-34, 4:03-CV-49 (March 3, 2004))

As of this writing, the version of Judge Davis' patent rules on the Eastern District website had not been updated to reflect this new change.

Download file

Motion to Require Additional Detail in Preliminary Infringement Contentions in Patent Case Denied

STMicroelectronics, Inc. v. Motorola, Inc., 308 F.Supp.2d 754 (NO. 4:03-CV-276)
Judge: Davis
Division: Sherman
Date: March 17, 2004
Holding: Plaintiff's Motion to Enforce Defendant's Compliance with Patent Rule 3-1 DENIED
COMMENTS:
This second opinion in the STMicroelectronics, Inc. v. Motorola, Inc. case pending before Judge Davis arose when the plaintiff claimed that the defendant's preliminary infringement contentions failed to comply with Patent Rule 3-1. Judge Davis stated that he would not pre-try the case at this procedural stage by conducting a highly detailed analysis of the preliminary claim infringement contentions. Instead, he gave the parties the following "general discovery guidelines to follow".
First, as to the specificity required of a party's preliminary infringement contentions, the court cited a Northern District of California judge's opinion on the corresponding rule, which stated that "[a]t this juncture, a party may comply with Patent [Rule] 3-1 by setting forth particular theories of infringement with sufficient specificity to provide defendants with notice of infringement beyond that which is provided by the mere language of the patent rules themselves ... PICs [preliminary infringement contentions] are not meant to provide a forum for litigation of the substantive issues; they are merely designed to streamline the discovery process...." Judge Davis also noted that Patent Rules 3-6 and 3-7 allow for additional detail to be added in later disclosures.
Second, the Court noted that it follows a policy of liberal discovery, that in marginal cases it will generally favor discovery, and that it "will not tolerate gamesmanship that attempts to conceal or delay the production of discoverable items."
Finally, Judge Davis concluded by encouraging the parties to "make every good faith attempt at fairly resolving discovery disputes amongst themselves. . . [and]. disclose discoverable information as quickly and efficiently as possible." Id. at *2. "In the unfortunate event that parties cannot resolve their disputes the Court will intervene." Id.