U.S. District Judge Alan Albright, who has the busiest patent docket in the country, issued two amended standing orders this week designed to help keep court matters moving as efficiently as possible while maintaining fairness to both sides.
The first order limits the amount of discovery allowed when one party seeks to transfer a case out of Judge Albright’s court (it was previously unlimited); the second order opens fact discovery the day after the first scheduled Markman hearing, even if that hearing is rescheduled. Both orders became effective Tuesday.
Per the amended first order, parties are now limited to five interrogatories, 10 requests for production and 10 hours of deposition testimony on discovery related to venue and jurisdiction in patent cases. The time a party has to respond to such discovery requests is now limited to 20 days. Judge Albright said he established the limits based on feedback from practitioners who regularly practice before him in an effort to “make it the most fair for both sides.”
In addition to fairness, legal experts perceive the order as a move toward greater efficiency.
“I think it’s a good thing to have limits on venue discovery, because it can be an expensive process for both parties involved,” said Syed Fareed, an intellectual property partner in Baker Botts’ Austin office.
The second order amends a March 23 standing order to resolve transfer motions before conducting a Markman hearing. Judge Albright says the June 8 amendment ensures that progress in a case is not hindered by a pending motion.
The original March 23 order followed recent mandamus proceedings that resulted in the Federal Circuit instructing Judge Albright to move forward with claim construction before deciding on the motion to transfer.
“This standing order would allow trial dates to be intact even though there may be a transfer motion that’s pending by the time the [original] Markman hearing 2023 comes,” Fareed said. “The reason it’s unique is because other districts typically do not stay fact discovery pending a Markman hearing. Doing that before the Markman hearing is unique to Judge Albright and others in the Western District and is a quite efficient way of approaching things.”
Eyeballs across the country have been on Judge Albright this year as patent cases have flocked to his Waco courtroom and his first several patent infringement jury trials have unfolded. The current tally is two patent jury trial wins for plaintiffs and three for defendants.
Since Judge Albright’s courtroom has now seen a gargantuan verdict for a plaintiff — a historic, $2.175 billion verdict after VLSI and Intel’s first trial — it’s natural that more defendants could seek motions to transfer their cases out of Judge Albright’s court, said John Summers, a principal at Dallas IP and commercial litigation boutique Caldwell Cassady & Curry.
“It is foreseeable that following the recent VLSI plaintiff’s verdict, more and more defendants are likely to file motions to transfer as a matter of course,” Summers said. “The court’s new orders appear to be designed to ensure that, consistent with the Federal Court’s guidance, those issues are dealt with prior to other substantive issues.
“But the court’s orders also seek to balance that desire with an attempt to ensure that any decisions are reached on an adequate record and keeping cases moving toward trial even if it takes the court a bit longer to rule on a particular transfer motion,” Summers added.