MANAGING IP
Rani Mehta August 26, 2022
Litigators debate what proceedings are best done remotely and whether courts’ differing approaches will affect forum shopping
When Fish & Richardson’s David Conrad litigated a patent dispute a few months ago, he was frustrated to learn that the scheduling conference would be held in person.
The hearing, which would only take 10 minutes, could have been done remotely, he tells Managing IP. And yet the judge informed the Texas-based principal and the other parties just two days prior that the conference would be held in the courthouse, forcing everyone to fly out and stay overnight, and costing the client thousands of extra dollars in expenses.
“It would have been a good opportunity to do a phone call – but it goes to show that some judges are still hesitant to do remote proceedings even when it would be beneficial to everyone involved,” notes Conrad.
The litigator’s experience emphasises the lack of consensus among judges when it comes to remote proceedings.
Judge Alan Albright with the District Court for the Western District of Texas – who has a hefty patent caseload for the time being – has indicated that he will manage nearly all proceedings remotely.
But chief judge Rodney Gilstrap at the District Court for the Eastern District of Texas has said almost all hearings will be held in person in his courthouse.
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These varying approaches can affect where plaintiffs file, according to counsel at Sanofi, Blackbird and three law firms.
Parties may consider courts’ virtual dispute policies if they enable cost savings or make things more difficult for the opposition, say sources.
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Stephanie Donahue, principal counsel of patent litigation at Sanofi in New York, says it’s better to see the witnesses and assess credibility.
“Some of that’s lost when there are remote proceedings,” she says.
Conrad at Fish adds that he would also like judges to be able to evaluate explanations from the other side in person, particularly if there are questions of credibility.
“When you do that in a federal courtroom with a judge in a robe, it imposes a sense of authority, and having that is important,” he says.
Not everyone agrees that evidentiary proceedings should be done in person, of course.
Wendy Verlander, CEO of non-practising entity Blackbird Technologies and managing partner of Verlander LLP in Boston, says claim construction hearings can be done remotely because judges who have read the briefs understand what to look for.
Some counsel are even comfortable with remote bench trials.
Verlander says virtual bench trials in which judges are familiar with the issues are more doable than remote jury trials.
“Although they’re probably right on the line of what can and can’t be done remotely,” she notes.
For the full article, continue reading at Managing IP.