In WDTex, the Fight Escalates

Last week we told you about Judge Alan Albright’s determination to keep trying patent cases. He had a trial scheduled for January in Austin, where we had transferred the case pursuant to 28 U.S.C. § 1404 while leaving himself as the assigned judge. Trials are not being held in the Austin courthouse, however, so he transferred the case back to Waco.

Now the defendant has moved to postpone the trial until after March, attaching a declaration from the Chief of the Division of Infectious Diseases at Baylor University Medical Center stating that the current state of the pandemic “poses a significant potential risk to the health, safety and life of participants in a trial starting January 11, 2021, in Waco or Austin, Texas, as well as to the communities in the Division where trial is held and communities in places where out-of-state participants will return after trial.” According to the declaration, there is a 74% chance of “at least one person having COVID-19 from a group of 50 people gathered in McLennan County [which includes Waco].”

The defendant notes that its trial team “includes persons who are at high risk of severe illness or death from COVID-19 or have family members in high-risk groups. Absent a continuance, trial will require these persons—and numerous other attorneys, staff, witnesses, and client representatives—to travel to trial, placing themselves, their families, the Court and its staff, and the local community at risk. It may also force some witnesses to testify remotely.”

The plaintiff opposes the motion.

Meanwhile, most interestingly, the defendant has filed a petition for writ of mandamus with the US Court of Appeals for the Federal Circuit. The petition argues that the re-transfer to Waco was improper under the governing US Court of Appeals for the Fifth Circuit standard. There’s a lot going on between the lines, however.



A Mistrial, without a Positive Case

In Charlotte, North Carolina, the Superior Court for Mecklenburg County attempted to hold its first pandemic jury trial, starting November 16. Things did not go well.

First, during the evidence phase, a jury was excused after reporting a possible exposure. He later tested negative. Then, jury deliberations were suspended for a week when a juror began experiencing COVID-19-like symptoms. That juror too tested negative. Then, on Monday, a jury who traveled during Thanksgiving notified the court of being exposed to relatives who were not showing COVID-19 symptoms. The courthouse was trying to arrange testing for that juror.

The result? A mistrial, without a positive test.

Meanwhile, the county reports that more than 700 felony cases are awaiting trial, including 100 homicide cases and another 150 involving rapes, assaults and other violent offenses.

According to the Charlotte Observer, “the statewide surge in new COVID-19 cases is already surpassing some of the disease measures the courthouse pledged to use to gauge whether the jury trials should continue.” But jury selection of the second pandemic jury trial is now underway.



Waco to be the New Trial Hot Spot

With Judge Gilstrap of the Eastern District of Texas finally cancelling his winter trials in the face of surging cases, attention turns to the Western District of Texas, which Judge Alan Albright is going in a different direction.

Waco has become the nation’s hottest patent infringement venue, in part due to Judge Albright’s willingness to bring patent cases quickly to trial. Defendants sued in the Waco Division frequently adopt a strategy of moving for an interdivisional transfer to Austin. Judge Albright has been amenable to such motions, but often he retains the case as the trial judge even as he transfers it to Austin. Yesterday he entered a noteworthy order in one such case.

The Western District of Texas has continued trials through the end of 2020. However, judges in a particularly division may opt out of that order. The judges in Austin have not opted out. Thus, according to Judge Albright, the Austin Division is “currently closed” and “remains closed indefinitely.” Accordingly, with trial set for January in Austin, Judge Albright transferred the case back to Waco, where he intends to proceed with the trial.

Judge Albright found that under Federal Rules of Civil Procedure 1 and 77(b), district courts have the authority to try a case in any division within a district, even without the parties’ consent. He also found that district courts possess the inherent authority to transfer a case to another division. Exercise of that power, however, must be a reasonable response to a specific problem. Judge Albright wrote:

Here, the specific problem before the Court is the indefinite closure of the Austin courthouse. As described above, the Austin courthouse is currently closed and has been closed on a month-by-month basis since March 2020. Furthermore, because there is no foreseeable end to the COVID-19 pandemic, there likewise is no foreseeable end to the closure of the Austin courthouse. But, out of an abundance of caution, the Court asked Judges Yeakel and Pitman whether there is a month-certain when the Austin courthouse will reopen, but their answer was no. As such, that answer confirmed the Court’s conclusion that the Austin courthouse appears to be closed indefinitely.

 

Given this reality, the Court only has two options with respect to the instant case: (1) wait until the Austin courthouse reopens or (2) move the trial to an open courthouse in the district. The Court does not believe that the first option is practical or reasonable for several reasons.

 

First, the Court has already delayed the trial date in the instant case by two months and there is no foreseeable date or date-certain when the Austin courthouse will reopen. Second, the pandemic has created a backlog of trials such that delaying one trial further delays other trials. Therefore, the Court believes that it must manage its docket proactively in order to minimize the effect of that backlog. Third, because the trial dates for the -00255 and -00256 cases are two and four months, respectively, after the trial date for the -00254 case, delaying the trial date of the – 00254 case not only delays the trial date of that case, but it has a multiplicative effect by delaying the trial dates of the other two cases by the same amount of time. Fourth, because patents have a limited term, the Court does not believe it should unnecessarily delay a trial date, especially when an alternate venue is available. For at least these reasons, the Court does not believe that waiting until the Austin courthouse reopens is a practical or reasonable. As such, the only other option available to the Court is to move the trial to Waco.

In a footnote, Judge Albright noted: “Unfortunately, unlike circuit courts that may be able to hold telephonic hearings or district courts that may be able to hold a virtual bench trial, the Court does not believe that it is fair and/or appropriate to hold a virtual jury trial.”

Notably, this order was entered in a case filed in April 2019, with patents-in-suit that will not expire until 2027 and 2029.



“Jury Trials are Innately Human Experiences.”

Judge Rodney Gilstrap of the US District Court for the Eastern District of Texas as capitulated, postponing his upcoming trials until March. His order includes some interesting commentary in the footnotes.

Of remote proceedings, Judge Gilstrap writes:

This approach, while adequate in a strict sense, allowed the Court to move forward virtually, albeit with regularly unwelcomed losses of audio, video, or both, including unfixable lagtime between audio and video where lips would move. . . lips would stop . . . and sound would follow. The virtual proceedings detracted from the typical administration of justice, depriving the Court of the ability to observe such critical factors as intonation, body-language, attitude, demeanor, and similar vocal and other physical nuance and those quasi-intangibles that normally breathe life and meaning into the written briefing filed on the docket. This approach also unavoidably hampered the Court’s ability to interject questions and have an easy dialogue with counsel. In some instances, virtual proceedings before this Court were infected by the necessarily casual features of home life, such as intrusions of advocates’ spouses, children, and family pets. While such happenings may be an increasing norm of remote work in many contexts, they stand in stark contrast to the formality and solemnity in which Court proceedings traditionally are and must be conducted. Such problems are only magnified in complex proceedings with many moving parts.

On the safety precautions he had put in place for his pandemic trials, Judge Gilstrap writes:

These safety protocols included but were not limited to: taking temperatures of all entrants to court facilities; requiring masks and in some cases gloves; installing industrial air filtration devices in courtrooms; spacing in-person lawyers, parties, witnesses and jurors; installing plexiglass barriers around witness stands, jury boxes and elsewhere; limiting the number of participants physically present in court; periodic and repeated deep cleaning of jury rooms, restrooms and other common facilities; written questionnaires to venire members regarding their personal circumstances related to the virus sent and answered prior to their appearance; sequestering of jurors and providing individualized meals during trials to avoid exposure within communities during lunch breaks; and myriad other measures.

For Judge Gilstrap, remote trials are not a viable solution. He writes: “While some motion practice may be adequately addressed via virtual proceedings, the Court believes that the fair adjudication of the rights of the parties, as envisioned by the Framers and embodied in the Sixth and Seventh Amendments.” Then comes this footnote:

Jury trials are innately human experiences. More is often communicated in a courtroom non-verbally than verbally. Such a human experience must allow for the look and feel of direct human interaction. Such factors as cadence, tone, inflection, delivery, and facial expression are as vital to due process as is the applicable statute or case law. When Daniel Webster argued the Dartmouth College case, John Marshall cried from the bench. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819). Our history is replete with such examples of the humanity engrained in the American jury trial. This Court is persuaded that the remote, sterile, and disjointed reality of virtual proceedings cannot at present replicate the totality of human experience embodied in and required by our Sixth and Seventh Amendments.



McDermott’s litigation team monitors US courts as they reopen amid the ongoing COVID-19 public health crisis. 

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