In the US District Court for the Western District of Texas, Judge Alan Albright’s closely watched patent trial is underway. The US District Court for the Eastern District of Virginia just issued a notice that criminal jury trials would resume March 1. In Long Island, jury selection has been set for the bellweather opioid trial brought by the New York Attorney General. Spring has sprung.
In West Texas, the Jury Will Return
Returning once again to the stage of Judge Alan Albright’s patent case in the US District Court for the Western District of Texas:
In January, a second mandamus petition was unsuccessful in the US District Court for the Federal Circuit, notwithstanding its similarity to the first mandamus petition, which was successful. Thus, the stage was set for a patent trial in Waco, which will begin Monday. Yesterday, Judge Albright issued an order setting COVID-19 procedures for the trial. These include:
- Before voir dire, jurors will be given N95 masks and face shields, and they will be instructed to wear both throughout voir dire, except they may remove the masks when answering questions.
- Seven jurors will be selected. (This means they can only afford to lose one juror prior to the verdict.)
- During the trial, the jurors will be in the jury box, at least six feet apart. They have the option of wearing an N95 mask or a face shield. The parties will sit in the gallery and will wear masks or shields while not speaking. Witnesses will not wear masks but will behind a plexiglass shield.
- Bench conferences may be moved to chambers. (There is no mention of the headphone system that other courts have employed.)
- The court will provide a “large air purifier to promote healthy airflow within the courtroom.”
- In the courtroom, there will be a maximum of six party-affiliated trial participants per party, including corporate representatives and technical personnel, but not including any witness presently testifying.
So far, those procedures are typical of other pandemic trials. Then, like the coronavirus itself, things get novel:
- All party-affiliated trial participants must be PCR tested within five days prior to their first appearance at the courthouse, with negative results confirmed prior to entering the courthouse.
- Additionally, there will be mandatory daily testing by rapid antigen or PCR for all party-affiliated participants who enter the courthouse. Testing may be conduct morning-of or day-prior. “The parties may arrange for such testing to take place at a designated area around the Courthouse or may arrange for their own testing (e.g., at their hotel space).”
- If anyone receives a positive test after traveling to Texas or after meeting in person with any participant in the trial, that person’s affiliated party must immediately notify the court and the other party immediately. “The party may but need not disclose the identity of the affected individual but will in good faith cooperate with the other party to provide information sufficient to identify whether and to what extent others have been in contact with the affected individual, including, at least, whether the affected individual previously was in the Courthouse or was in a shared hotel or preparation space with any other of the party’s trial participants.”
- All party-affiliated trial participants are encouraged to use an N95 mask or a generally equivalent mask to be worn at all times in all shared spaces. “A mask is not required while a trial participant is eating or drinking, provided that he or she does so in a responsible manner and keeps at least a 6-foot distance from all other persons.”
- “All party-affiliated trial participants shall endeavor to adhere to social distancing requirements, including keeping an at least 6-feet of distance from other trial participants and limiting Courthouse elevator occupancy to a maximum of two (2) riders at a time.”
- “COVID-19 rapid antigen testing will be made available for jurors, the Court and its staff, and any non-party witnesses each morning of trial prior to the start of the trial day as practicable.” The parties will bear the cost of this. “Individuals are not allowed to enter the Courthouse until a negative test result has been received by any individual who has opted to be tested. Any individual who receives a positive result may opt to be re-tested to help rule out a false positive.”
- “In the event that any juror or non-party witness receives a positive COVID-19 test, this fact (without disclosing the identity of the individual) will be communicated by the registered nurse(s) to a designated contact or contacts for each party. The parties will jointly notify the Court immediately thereafter and the parties and Court will convene a conference to discuss appropriate next steps.”
- The Order then notes that one party (the defendant, which did not want the trial to go forward) “proposes that in the event that the Court or a member of its staff receives a positive COVID-19 test, this fact (without disclosing the identity of the individual) will be communicated to a designated contact for the Court and the parties and Court will convene a conference to discuss appropriate next steps.” It does not appear the court has accepted this proposal.
The public is permitted to listen to the trial proceedings by telephone. The number to access both voir dire and trial proceedings is +1 551 285 1373, Meeting ID 160 438 6723, Passcode 777035.
Filters Off, Please
Proceeding by Zoom may not be harmless. If you’ve not seen this video, watch it:
McDermott’s Litigation team can help you avoid mistakes like these!
Looks Like We Made It
The Trump administration departs. The Biden administration arrives. But for the courts, the inauguration is no magic shot in the arm (as they say).
Appeals courts have been reluctant to second-guess trial courts’ approaches to COVID-19, at least explicitly. But the Texas Supreme Court has taken a different approach this week. According to Texas Lawyer:
[The Texas Supreme Court] has hit the brakes on an in-person jury trial in Houston this week, even though justices last year denied similar requests to continue trials as COVID-19 spread across the Lone Star State. Yet this time, as infection rates—reaching their highest point ever—have begun overrunning intensive care units in some Texas cities, the justices have issued an about-face by granting an emergency motion to stay.
New York litigators from Davis Polk & Wardell first asked for a trial continuance that was denied by Judge Mike Englehart. Next, they lost a bid from Houston’s 14th Court of Appeals to stop the two-week trial that was supposed to begin Monday.
Before the Texas Supreme Court, they argued that their lead trial counsel recently lost his father-in-law to COVID-19. The death “makes the risks associated with this trial much more onerous for counsel and his family.” The trial team members’ families include an elderly cancer survivor and immunocompromised relatives who might be exposed when the lawyers return from Houston. Also, a “key witness” currently “has the coronavirus and can’t testify.” Persistence paid.
Optimism in East Texas
We return now to Judge Amos Mazzant’s federal courtroom in Sherman, Texas. COVID-19 caused a mistrial last year, when jurors, lawyers and court staff become infected mid-trial. We covered it, most recently, here.
Judge Mazzant has reset the jury trial for March 8, 2021. The trial date will either represent a return to normalcy or misplaced optimism.
Time will tell. If it occurs, the two-week trial will overlap with the anniversary of the national shutdown.
The Jury Returns…Returns.
Happy New Year! 2021 begins as 2020 ended: mostly without jury trials. Some are determined to change that, however, which brings us to the latest in the saga of Judge Alan Albright’s US District Court for the Western District of Texas case, which we covered immediately below (and elsewhere).
When we left off, Judge Albright had retransferred the case for trial purposes from Austin to Waco so that he could hold a jury trial in January. The defendant had petitioned the US Court of Appeals for the Federal Circuit for mandamus to stop the trial. We noted that “the panel could grant the petition without addressing whether trials should be held in the current environment.” And in fact, that is exactly what happened. On December 23, the Federal Circuit found that Judge Albright had incorrectly applied the US Court of Appeals for the Fifth Circuit standard for retransfer under 28 USC § 1404 and lacked the inherent authority to retransfer. But then, the Federal Circuit wrote:
In granting mandamus, we do not hold that the district court lacks the ability to effectuate holding trial in the Waco Division. We only hold that it must effectuate such result under appropriate statutory authority, such as moving the entire action to the Waco Division after concluding, based on the traditional factors bearing on a § 1404(a) analysis, that “unanticipated post-transfer events frustrated the original purpose for transfer” of the case from Waco to Austin originally. In re Cragar Indus., Inc., 706 F.2d 503, 505 (5th Cir. 1983). Such analysis should take into account the reasons of convenience that caused the earlier transfer to the Austin division.
The Federal Circuit’s analysis includes no discussion of the COVID-19 pandemic.
Back in the trial court, the same day the Federal Circuit granted mandamus, the plaintiff filed an emergency renewed motion for retransfer so that the trial could be held in January. Defendant opposed, arguing, among other things, that this is a patent case in which only money damages are sought that was filed only in April 2019, so there is no urgency to try it. Judge Albright set a December 30 hearing, in which he indicated he would again order a transfer to Waco. The defendant indicated it would again seek mandamus, and Judge Albright agreed to postpone jury selection until February to give the Federal Circuit time to rule. On January 4, 2021, the defendant filed its latest mandamus petition, along with a motion to stay. The motion to stay lays heavily into public interest factors. However, the Federal Circuit has put the motion and the petition itself on the same briefing schedule, which could allow it to again grant the petition without addressing the underlying question of whether a jury trial should be helpful in the current circumstances.
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 here:
On Again, Off Again
Readers will remember our coverage of the November trial in Eastern District of Texas, Sherman Division, which ended in a mistrial after jurors, court staff, and lawyers on both sides contracted COVID-19. The trial judge, Amos Mazzant, had wanted to push forward, but the number of jurors eventually grew too small.
On December 4, Judge Mazzant had a 6-minute teleconference to reschedule the trial. The plaintiffs were eager to proceed and suggested a March trial date. Defendant’s counsel had a conflict with the March date, however, so Judge Mazzant set the trial for January 25.
The virus apparently has other ideas. According to Law360, Grayson County, Texas, where the court is located, reported 46 new cases on Saturday, with 432 active cases in the county of 136,000. Hospitals are at 92% occupancy with intensive care units at 100% occupancy. And so yesterday, in a one-sentence order without explanation, Judge Mazzant cancelled the January 25 trial, to be rescheduled “on a date determined by the Court.”
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 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.
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 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.