Reopening Procedures
Subscribe to Reopening Procedures's Posts

The Latest on Judge Albright’s January Trial

Readers will recall our coverage of Judge Alan Albright’s re-transfer of an Austin patent case to Waco so that the court could hold a jury trial in January as scheduled. In that case, the defendant has sought mandamus from the US Court of Appeals for the Federal Circuit to stop the trial, but the petition is not expressly predicated on COVID-19 issues. Briefing is complete, and the panel will rule soon—but the panel could grant the petition without addressing whether trials should be held in the current environment. Meanwhile, in Judge Albright’s court, the parties continue to debate whether the trial should go forward. The transcript of last week’s motion hearing is a must-read. Introducing his argument, the defendant’s counsel told Judge Albright: “We take this step to avoid the potentially dire outcome for any particular person’s health or life.” This is not the type of remark we saw in patent cases before 2020. The transcript is...

Continue Reading

Lawyers and Judges Battle over COVID-19

Requests for COVID-19-related trial delays can lead to strife between lawyers and judges—and crazy things can happen. We see this most recently in San Bernadino, California, where a civil jury trial has been interrupted in the middle of jury selection. The Sun has the story, which we paraphrase: An attorney who allegedly tested positive for COVID-19 amid San Bernardino County’s largest civil trial since the start of the pandemic claims court personnel failed to inform dozens of potential jurors that he may have inadvertently exposed them to the virus.   The attorney, who represents the defendants, made the claim in a motion, prompting the judge to halt jury selection until Feb. 15.   “The court refused to inform potential jurors that they had been exposed to someone contagious with COVID-19,” the Nov. 10 motion states. “Far from contact tracing, the court actually withheld information from those who may have been exposed.”   Plaintiff’s...

Continue Reading

Virtual Courtrooms in Miami

This morning we received this notice from state court in Miami (the Eleventh Judicial Circuit) where we have a case pending: Coronavirus/COVID-19: Courthouses are closed for in-person hearings and trials based on public health advisories at the direction of the Florida Supreme Court. The Eleventh Judicial Circuit wants you safe at home.   We are establishing Virtual Courtrooms. Court hearings in your case that we can hold remotely via video or phone conference will be held on the Zoom platform, which is free to you. You will receive an email from the Court if we are proceeding with your hearing with the information you need to connect.

Continue Reading

Competing Approaches in South Carolina

Last week saw differing approaches to the pandemic in South Carolina. In the state court system, Chief Justice Don Beatty suspended all state civil and criminal jury trials, finding “that in light of the ongoing increase in COVID-19 cases throughout South Carolina, and the expectation by the medical community and experts that the number of positive cases will continue to increase in the near future, it is prudent to once again make changes to the operations of the circuit courts for the protection of those who work within the courts, as well as those who serve our state by participating in jury service…It is ordered that the circuit courts statewide shall not commence any jury trial after December 4, 2020.” In federal court, however, US District Judge J. Michelle Childs did not react well to a defendant’s suggestion that a requested stay might not matter that much anyway, given the pandemic. She wrote: “Defendant is severely mistaken that ‘due to the global...

Continue Reading

Trial by Webex, but Not Zoom?

Litigation by Zoom is not novel at this point. Depositions by Zoom, motions hearings by Zoom, bench trials by Zoom—it’s all become commonplace. While federal civil jury trials by Zoom have been rare, there have been many in various state courts. And while we know from our daily lives that other videoconferencing services are available (Teams, Webex, GoToMeeting, Collaborate), Zoom predominates in pandemic litigation. It was curious, then, to see a ruling from the US Court of Federal Claims. Confronted with a routine discovery motion for leave to take depositions remotely pursuant to Federal Rule of Civil Procedure 30(b)(4), which requires such leave in the absence of a stipulation, Judge Charles Lettow wrote: “In the circumstances at hand, the court GRANTS leave for depositions to be taken either telephonically or by Webex. Zoom should not be used, absent proof that such use would be secure.” It seems that the parties did not direct the court to...

Continue Reading

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 he 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...

Continue Reading

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...

Continue Reading

Waco to Be the New Trial Hot Spot

With Judge Rodney Gilstrap of the US District Court for the Eastern District of Texas finally cancelling his winter trials in the face of surging cases, attention turns to the US District Court for 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...

Continue Reading

“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...

Continue Reading

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

STAY CONNECTED

TOPICS

ARCHIVES