Eastern District of Texas Federal Court Practice

State Bar Federal Court Practice seminar: judges panel & trial procedure paper

I am spending the day at CityPlace in Dallas watching the annual State Bar Federal Court Practiceseminar.  Magistrate Judge Roy Payne represented the district on a judges panel with district judges Kathleen Cardone from El Paso and Diana Saldana of Laredo.  Later in the afternoon Judge Payne and I will present Trial Procedure in Federal Court.

Sen. Cornyn introduces S. 1013, the Patent Abuse Reduction Act of 2013

Sen. John Cornyn (R-TX), a member of the Senate Judiciary Committee, introduced a patent litigation bill yesterday, S. 1013, the Patent Abuse Reduction Act of 2013.  

As filed, the bill would add a number of procedural requirements to patent infringements suits as follows:

Pleading requirements

The bill would require initial complaints to include detailed information about the plaintiff's claims, including listing the patents, asserted claims, accused devices, and other issues regarding the ownership of the patents and persons interested in their enforcement.  The provision would also direct the Supreme Court to review and amend Form 18 of the FRCPs to conform with the new section.

Joinder

Section 299 would be amended to permit defendants to join most persons with an interest in the asserted patents.

Discovery limits

The bill would prohibit discovery in patent infringement cases on issues other than claim construction until the claim construction ruling.  The court would have discretion to permit discovery necessary to resolve motions filed before the Markman ruling.

The bill would also define "core" discovery (which excludes computer code or electronic communications unless the court finds it should be included) and provide that for any discovery beyond core discovery  discovery costs are automatically shifted to the requesting party, including attorneys fees, and the requesting party must either pay for the discovery when requested, or post a bond to cover the expenses.  Courts can still determine that discovery should not be had, even if the costs are paid/posted.

Costs and expenses

Courts "shall" award reasonable costs and expenses, including attorneys fees, to the prevailing party unless: (1) the loser's position and conduct was "objectively reasonable and substanially justified"; or (2) "exceptional circumstances" would make such an award unjust.  In determining whether one of the exceptions applies the court shall not consider as evidence any settlement licenses.  If the losing party cannot pay the expenses, the court may make the costs and expenses recoverable against any interested party.

 

Chief Judge Leonard Davis Named Tex-ABOTA Jurist of the Year

The 2013 TEX-ABOTA (American Board of Trial Advocates) Annual Award honorees were chosen in a vote at the TEX-ABOTA board meeting on May 18, 2013.  The honorees listed below include East Texas’ own Chief Judge Leonard Davis, who was recognized as Jurist of the Year. They will be recognized at the Annual Dinner in Santa Fe, NM at the La Posada hotel on Saturday night, June 29th. 

• Jurist of the Year: Hon. Leonard Davis, nominated by East Texas
• Trial Lawyer of the Year: Lewin Plunkett, nominated by San Antonio
• Champion of the 7th Amendment: Maricela Ayala, Martin High School - nominated by Laredo

Federal Circuit / Eastern District Bar Associations Advanced Complex Litigation seminar - Plano

Enjoying an interesting afternoon in Plano at the Center for American and International Law watching the joint FCBA / ED Bar seminar on Advanced Complex Litigation emceed by U.S. District Judge Rodney Gilstrap of Marshall.  

We just finished the first panel with Judges Schneider and Love, Gil Gillam, and Federal Circuit Executive Jan Horbaly on case management, and Jennifer Ainsworth just started the panel on discovery with Judge Roy Payne, Mike Jones and Tom Melsheimer.

Next up will be pretrial practice and mediation moderated by Lance Lee with Judge Gilstrap, Wes Hill, and former chief judge David Folsom.  After that the excitement crests with my partner Clyde Siebman moderating the panel on litigation involving multiple parties with Judge Ron Clark, Judge Amos Mazzant, Jennifer Doan and Sam Baxter.  I'm guessing that one might run a little long, but hopefully not too long as we have a reception for attendees afterwards, hosted by the FCBA. 

Thanks to the FCBA and its executive director Jim Brookshire for inviting the Eastern District Bar to work with them on this, and a special thank you to the CAIL staff, including vice president Mark Smith for an outstanding job hosting us.

Register Now: FCBA / ED Texas Bar Advanced Complex Litigation (ACL) series - Thursday in Plano

Just a reminder about the joint Federal Circuit Bar Association / Eastern District of Texas Bar Association Advanced Complex Litigation (ACL) series seminar in Plano Thursday afternoon of this week.  As I posted recently, there will be five ACL programs at five patent pilot courts across the country, including the Eastern District of Texas.  The ED Tex event will be in Plano at the Center for American and International Law on Thursday, April 25, 2013.  

Registration is online here - it is $25 for FCBA or EDBA members and $125 for others.  and the current agenda is as follows.  This is an excellent opportunity to hear to six sitting Eastern District of Texas judges on complex litigation topics in one afternoon - and we'll throw in a reception at the end of the day.  Seating is limited, so please register online as soon as possible.

 12:30 – 1:00Registration

1:00 – 1:30Opening remarks

• Judge Rodney Gilstrap, United States District Judge, Eastern District of Texas - Marshall

1:30 – 2:15 Case Management in Complex Litigation

• Moderator: Michael C. Smith, Partner, Siebman, Burg Phillips & Smith LLP
• Panelists: Jan Horbaly, Circuit Executive and Clerk of Court, United States Court of Appeals for the Federal Circuit
• Michael Schneider, United States District Judge, Eastern District of Texas Tyler
• John Love, United States Magistrate Judge, Eastern District of Texas Tyler
• Gil Gillam, Partner, Gillam & Smith LLP

2:15 - 3:00 Discovery in Complex Litigation

• Moderator: Jennifer Ainsworth, Partner, Wilson, Robertson & Cornelius, P.C.
• Panelists: Roy Payne, United States Magistrate Judge, Eastern District of Texas Marshall
• Mike Jones, Partner, Potter Minton, PC
• Tom Melsheimer, Principal, Fish & Richardson, PC

3:00 – 3:15 Break

3:15 – 4:00 Focusing Disputes: Mediation and Pretrial Practice in Complex Litigation

• Moderator: Lance Lee, Attorney at Law
• Panelists: Rodney Gilstrap, United States District Judge, Eastern District of Texas Marshall
• Judge (Ret.) David Folsom, Mediation Partner, Jackson Walker, LLP
• Wesley Hill, Ward & Smith Law Firm

4:00 - 4:45 Complex Litigation Involving Multiple Parties

• Moderator: Clyde Siebman, Senior Partner, Siebman, Burg, Phillips & Smith LLP
• Panelists: Ron Clark, United States District Judge, Eastern District of Texas Beaumont
• Amos Mazzant, United States Magistrate Judge, Eastern District of Texas Sherman
• Jennifer Doan, Partner, Haltom & Doan
• Sam Baxter, Principal, McKool Smith, PC

4:45 – 6:00 Reception (sponsored by Eastern District of Texas Bar Association)

The dates and locations for the other programs in the series are as follows:

Location	Date
Northern District of Illinois - DePaul Law School, Chicago Illinois	April 19, 2013
Eastern District of Texas - Plano, Texas	April 25, 2013
Central District of California - Los Angeles, California	April 30, 2013
Northern District of California - Santa Clara Law School, Santa Clara, California	May 3, 2013
District of New Jersey - Seton Hall Law School, Newark, New Jersey	May 30, 2013

 

FCBA Advanced Complex Litigation seminar - Eastern District of Texas segment - April 25, 2013 - Plano

In recent years the Federal Circuit Bar Association and the Eastern District of Texas have worked together to present several events, including a joint bench/bar conference in 2011 in Dallas, anchored by a rousing rendition of The Eyes of Texas by Chief Judge Randall Rader the morning after the Cowboys beat the Redskins in their home opener in nearby Arlington.  (I am told the alternative would have been Chief Judge Folsom's version of Hail to the Redskins, so this was a must-win game for the Cowboys).

They are at it again with the FCBA's Advanced Complex Litigation (ACL) series, which focuses at the trial court level on the advanced skills which assist the judicial system's ability to resolve matters with efficiency and lowest possible cost.  There will be five ACL programs at five patent pilot courts across the country, including the Eastern District of Texas.  The ED Tex event will be in Plano at the Center for American and International Law on April 25, 2013.  Registration is here, although I am not sure registration is actually open yet, and the current agenda is as follows.  I will be one of the moderators, and am actively soliciting questions for my panel, so if you have any for my panel or any of the others, please send them along and I will forward them as necessary.  I know there are a lot of hot topics in patent litigation these days, and this is a chance to find out what a lot of the leading practitioners in the area both on the bench and in the bar think, so don't be shy. 

 12:30 – 1:00 Registration

1:00 – 1:30 Opening remarks

• Judge Rodney Gilstrap, United States District Judge, Eastern District of Texas - Marshall
• Chief Judge Randall Rader, United States Court of Appeals for the Federal Circuit

1:30 – 2:15 Case Management in Complex Litigation

• Moderator: Michael C. Smith, Partner, Siebman, Burg Phillips & Smith LLP
• Panelists: Chief Judge Randall Rader, United States Court of Appeals for the Federal Circuit
• Michael Schneider, United States District Judge, Eastern District of Texas Tyler
• John Love, United States Magistrate Judge, Eastern District of Texas Tyler
• Gil Gillam, Partner, Gillam & Smith LLP

2:15 - 3:00 Discovery in Complex Litigation

• Moderator: Jennifer Ainsworth, Partner, Wilson, Robertson & Cornelius, P.C.
• Panelists: Roy Payne, United States Magistrate Judge, Eastern District of Texas Marshall
• Mike Jones, Partner, Potter Minton, PC
• Tom Melsheimer, Principal, Fish & Richardson, PC

3:00 – 3:15 Break

3:15 – 4:00 Focusing Disputes: Mediation and Pretrial Practice in Complex Litigation

• Moderator: Lance Lee, Young, Pickett & Lee
• Panelists: Rodney Gilstrap, United States District Judge, Eastern District of Texas Marshall
• Judge (Ret.) David Folsom, Mediation Partner, Jackson Walker, LLP
• Wesley Hill, Ward & Smith Law Firm

4:00 - 4:45 Complex Litigation Involving Multiple Parties

• Moderator: Clyde Siebman, Senior Partner, Siebman, Burg, Phillips & Smith LLP
• Panelists: Ron Clark, United States District Judge, Eastern District of Texas Beaumont
• Amos Mazzant, United States Magistrate Judge, Eastern District of Texas Sherman
• Jennifer Doan, Partner, Haltom & Doan
• Sam Baxter, Principal, McKool Smith, PC

4:45 – 6:00 Reception (sponsored by Eastern District of Texas Bar Association)

The dates and locations for the other programs in the series are as follows:

Location	Date
Northern District of Illinois - DePaul Law School, Chicago Illinois	April 19, 2013
Eastern District of Texas - Plano, Texas	April 25, 2013
Central District of California - Los Angeles, California	April 30, 2013
Northern District of California - Santa Clara Law School, Santa Clara, California	May 3, 2013
District of New Jersey - Seton Hall Law School, Newark, New Jersey	May 30, 2013

 

New magistrate judge appointed in Tyler to succeed Judge Guthrie

Magistrate Judge Judith Guthrie of Tyler will be retiring from the bench in August after 26 years of service as a magistrate judge.  Last month the Eastern District judges interviewed the finalists for Judge Guthrie's position, and by General Order 13-04 appointed Nicole Mitchell of Van, Texas, who is currently Judge Davis' chief staff attorney.  Judge-elect Mitchell will take the bench August 16, 2013.

Realignment - General Orders 13-2 and 13-3

Well, it's not as big a deal as the Cowboys defense shifting from the 3-4 base defense they've used the past eight years to a 4-3 (shown in last year's Buffalo game) under new defense coordinator Monte Kiffin, but it's still of at least moderate interest locally. 

Chief Judge Davis issued two orders yesterday modifying the judges' docket assignments slightly, and reallocating the existing cases to reflect the new allocation.  The reallocation in General Order 13-2- the first since Judge Folsom's retirement last March - raises Judge Gilstrap's portion of the Marshall civil docket from 75% to 100%, replacing Judge Schneider's 25%, and raises Judge Schneider's share of the Texarkana docket to 100%, replacing Judge Gilstrap's former 10%.  

In other news, Judge Schneider and Judge Davis split the Tyler civil docket, Judges Schell and Clark split Sherman civil, and Judge Clark handles all the Beaumont and Lukin patent work, plus the Lufkin civil and 40% of Beaumont civil.  Judge Crone matches that 40% of Beaumont and Judge Heartfield covers the other 20%.  I'm not even starting on how the criminal docket is divided up.

General Order 13-3 then lists out the existing cases that are to be redistributed, and contains a helpful appendix telling new parties in Judge Gilstrap's court what to do, which more or less consists of directing the parties to execute proposed docket control orders (after getting their new trial dates) and discovery orders that track the form on Judge Gilstrap's website.

My math may be off a bit, but looking at the appendices it appears that the Court celebrated Judge Gilstrap's first anniversary on the bench by having Judge Davis send about 200 (mostly patent) cases to Judge Schneider, Judge Schneider send about 200 (mostly patent) cases to Judge Gilstrap, and Judge Gilstrap send 11 cases (all nonpatent) to Judge Schneider.  

Marshall status conferences - time to trial trends

Judges Gilstrap and Payne conducted another set of patent status conferences in Marshall this morning.  A number of the cases heard were follow-on to previously set cases, and received those cases' settings, Judge Gilstrap noted.  Markman settings for all cases (including those set on top of prior cases as well as those receiving new ones) were 5-8 months from today (down from 7-12 months at the August conferences) and trial settings were 13-16 months from the status conferences (down from 12-19 months in August).  For comparison purposes, the last Tyler conferences I attended in November had times of 28-30 months to trial.  

50th Annual IP Law Conference - Center for American and International Law

I am spending today and tomorrow at the Center for American and International Law in Plano Texas attending the 50th annual conference on intellectual property law.  For a lot of Eastern District practitioners, the CAIL seminar is a traditional followup to the bench/bar, which is only a couple of weeks prior. 

This morning track Patent Litigation started off with Appellate Advocacy at the Federal Circuit, with Federal Circuit Chief Judge Randall Rader, John Whealan and Edward Reines, moderated by Ted Stevenson.  That is followed by Eastern District Judge Rodney Gilstrap on The Marshall Docket, moderated by Sam Baxter.  The morning will continue with sessions on Patent Litigation in China, and Joinder, Consolidated Trials, Venue Transfer, and Multi-District Litigation by Chad Everingham.

The afternoon track is on Trademark and Copyright, and tomorrow's sessions will be on Patent Prosecution and Technology, Licensing and IP Rights.

I'm looking forward to two good days of learning about the current state of the art in IP law.