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Green Sprouts

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.

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Monitoring the Reopening

Case numbers are falling. Vaccination is proceeding. We may be on track for a return to in-person jury trials in federal court. The question is: When will we get there? Today, we have three bits of news on that topic: On Friday, the US District Court for the Northern District of Illinois continued the suspension of jury trials through April 5, 2021. Also on Friday, the US District Court for the District of Minnesota continued the suspension of jury trials through May 2, 2021. In the US District Court for the Southern District of New York, Judge Lorna Schofield has set a major patent infringement jury trial for May 3. Notably, however, the April 23 final pre-trial conference is telephonic.

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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...

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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...

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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...

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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...

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Different Approaches in Texas

The Supreme Court of Texas extended its ban on in-person jury trials until December 1, San Antonio’s Spectrum News reports: “Since jury trials have slowed significantly since March, it’s been nearly impossible for attorneys to do their job to the best of their abilities.” However, lawyers are doing their jobs in at least some federal courts. Yesterday Judge Rodney Gilstrap completed a six-day patent infringement trial in federal court in Marshall, Texas, with a $5 million verdict for the plaintiff. The plaintiff’s attorney said the court’s safety precautions made for a “very comfortable experience.” Law360 reports that lawyers and witnesses did not wear masks, but there was a plexiglass shield in front of the witness stand to protect court staff. This is at least the third pandemic jury trial Judge Gilstrap has conducted, with one, in August, resulting in a $506 million verdict.

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

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