A New Trend: Motion Denied!

In times past, as regular EDTX patent practitioners can attest to, any time parties needed more time to accomplish a particular task or filing they could simply file an unopposed or agreed motion and the relief was generally automatically granted, no questions asked.  Those days may be quickly coming to an end.  Beginning a few years ago, Judge Davis regularly—and really quite understandably—started denying even agreed upon motions seeking leave for extra pages for motions or responses.  Even very detailed, well thought out requests for additional pages are now routinely denied.  That trend now appears to be spreading to various deadlines, including answer dates, submissions of docket control orders, discovery orders and the like.  Perhaps first seen in supplemental orders issued by Judge Love in Tyler and now being put in place by Judges Gilstrap and Payne in Marshall in regard to various deadlines they will not accept any extensions for, it is clear the courts here are finally cracking down and to some extent cracking the whip on lawyers’ seemingly never ending tendency to procrastinate.    Why do something today, you can put off till tomorrow doesn’t look like a winning strategy anymore in EDTX.  Be forewarned, the advice or suggestion of just filing an agreed motion to get more time is quickly becoming a thing of the past.   

New Multiple Defendant Patent Infringement Suit Under the AIA

This was just a matter of time, but a new multi-defendant post AIA patent infringement complaint was filed yesterday afternoon in Tyler. It's Pragmatus Telecom, LLC v The Neiman-Marcus Group, Inc., et.al. (6:11-cv-620). 11 defendants in all. How are they "joined"? Not entirely clear to this author that what is alleged will be enough to keep them together. There is no allegation of "arising out of the same transaction, occurrence, or series of transactions or occurrences", nor is there any pleading alleging common questions of fact as to all defendants. The only commonality appears to be common infringement of the same patent[s] and the fact that the infringement is allegedly done by use of the same software by all 11 defendants. Enough under the AIA? I don't think so, but time will tell. Stay tuned.....If you can't pull a copy of the complaint from ECF, let us know and we'll email it to you.

When is bill not a bill?

This is easy, when the bill was sent out in error. From the law firm perspective this likely seems like a minor mistake; an agreement was made to do something at no charge for a good client, time on the activity is nonetheless maintained for record keeping purposes, but due to wires getting crossed at the end of the month a bill goes to the client when it shouldn't have.

Again, from the outside lawyer's standpoint, a seemingly minor error, as the client is instructed to ignore the bill and pretend it never received it. But, now, put yourself in the client's shoes and see things from their standpoint. The arrival of the bill apparently triggers a cascade of requirements, filings, recordings, etc., that can't be as simply ignored or disregarded as the outside lawyer might imagine. Call it bureaucracy , needless paperwork or what have you, to the client it's very real and has to be complied with. So at the end of the day, the minor almost insignificant mistake by the lawyer has caused the client, however unintentionally, a great deal of frustration and consternation.

So, is there a lesson here? I think so. Two really: 1) Always strive in every relationship and dispute to see things, or at least try to, from the other side's perspective; and 2) As my father preached over and over, always measure twice--if not 3 or 4 times--and cut once. Thanks Dad.

EDTX Bench Bar Conference Follow Up

I've been remiss in not following up on the great conference we had at the Four Seasons in Dallas back at the end of September. As I posted previously, I was honored to be able to present a discussion, along with Greg Love of Stevens Love in Longview, on Current Developments in Venue. If you have any interest, you should still be able to find the presentation here: EDTX Venue Presentation. If that doesn't work, shoot me an email and I'll be happy to send it your way.

Marshall Judge Watch

For those of you trying to keep track of the retirements from and replacements to the bench in Marshall, it now appears likely that Rodney Gilstrap will be voted out and approved by the Senate next week. Judge Gilstrap should then be ready to take his bench near the time Judge Ward officially retires, on or about September 30. More should be known about Magistrate Judge Everingham's replacement in the coming weeks.

You Say Predictive Coding, I Say Patent Infringement??

As some readers may know, we at Findlay Craft have a passion for ediscovery and have helped clients and other firms negotiate their way through collections, reviews and productions for years. When we began FC we spun off the work we were doing in this area into the focused ediscovery/document review company, Level 2 Review. Since that time, Level 2 Review has grown dramatically and has expanded its work into all aspects of the law and all types of cases, investigations and requests. But there’s no question that a big part of that success has been in the area of electronic discovery in patent litigation.

So we find it a bit ironic, though not surprising, that one of the leading companies in the emerging field of “predictive coding”, which Level 2 utilizes, has—you guessed it—gotten a patent on its predictive coding technology. United States Patent 7, 993, 859 “Systems and methods for predictive coding” was touted by ediscovery vendor Recommind as giving it and its customers “. . .exclusive rights to use. . . processes for iterative, computer-expedited document review.” What do you think that phrase: “exclusive rights” has some folks a bit nervous they just might see Recommind heading to Tyler or Marshall sometime soon?? Just a thought…

For more discussion on, among other things, predictive coding and how using a cutting edge vendor—like Level 2 (shameless plug)—and the latest technology can result in a better overall review process read Technology Assisted Review in E-Discovery Can Be More Effective and Efficient Than Exhaustive Manual Review, 17 Rich. J. L. & Tech. 11 (2011).

2011 Eastern District Bench Bar Conference

A reminder that the 2011 Eastern District Bench Bar Conference will be held this year September 25-27 at the Four Seasons Resort in Irving, Texas. This year the Conference is being presented jointly with the Federal Circuit Bar Association and will include welcoming remarks by Chief Judge Randall Rader. As folks familiar with the district know, the Bench Bar Conference has been growing in popularity and attendance year and after year, and this year should be no different. It will also be a sentimental one, as it will be the last Conference with Judges Ward, Folsom and Magistrate Judge Everingham in attendance as sitting Judges.

Findlay Craft is pleased to participate again this year as a sponsor and is honored to have Eric Findlay speaking on Current Developments in Venue, along with Greg Love of the Stevens Love firm in Longview. More info can be found at http://www.edtexbar.com/assets/2011brochure.pdf.

Hope to see you all there!