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.
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.
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.
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:
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.
Earlier this week we told you that a New Jersey court was conducting voir dire partially by Zoom. The defendant objected that the process is unconstitutional because it yields a jury pool that is not a cross-section of the community. Now the court of appeals has halted the trial while it considers the issue. This result may be cited in criminal and civil jury trials nationwide, in both federal and state court. The issue of forming a representative jury pool in the midst of the pandemic has been worrying the judiciary for many months. Notably, the New Jersey Law Journal article on this case bears the headline “Appeals Court Halts State’s 1st Post-COVID-19 Jury Trial After Jury Selection Challenged.” But of course, we are not post-COVID-19. We are mid-COVID-19.