No, this isn’t a column on the most recent gizmos for controlling your tv or air conditioner. Even although the most recent era of cable container remotes appear to have the identical quantity of buttons you’d anticipate to see in an Airbus A320 cockpit. With voice management besides, for these of us preferring to proclaim “Yankees game” — on the danger of being diverted to AMC or Turner Classics’ newest exhibiting of “A Magnificent Yankee” — over urgent in a channel quantity. While the controversy over whether or not the growing technological complexity of easy units is a boon or a bane is an fascinating one, for functions of our skilled lives as IP legal professionals it’s rather more necessary to maintain abreast of follow developments. For litigators, these developments have centered closely on managing the impression of COVID-19 on pending instances.
For IP litigators, lots of whom have far-ranging practices by way of pending issues in several federal courts, maintaining monitor of the brand new procedures and guidelines could be a problem. Unlike legal professionals who could focus their follow on proceedings earlier than a selected court docket, in a selected geographic location, an IP litigator could discover themselves needing to overview the most recent COVID-19 steerage out of the Southern District of Florida earlier than lunch and the Eastern District of Texas’ earlier than their afternoon tea and pastry. (Or pastries, for these for whom lockdown has coincided with a break in dietary self-discipline.) Add in what seems as a concerted (however comprehensible, and befitting their must handle their private dockets) effort amongst district court docket judges to make idiosyncratic procedural modifications on high of the final steerage put out by their respective courts and it’s a lot to maintain monitor. But we should achieve this, whereas additionally on the lookout for COVID-19 particular choices which may be relevant to different conditions which will come up in our practices.
It was fascinating, due to this fact, to see the District of New Jersey’s Magistrate Judge Tonianne J. Bongiovanni endorse on August 12 a “Stipulated Order Governing the Taking of Remote Depositions” in a patent dispute between Takeda and generic challengers Zydus and Cadila Healthcare. In truth, Bongiovanni additionally signed off on the same stipulation — on the identical day — in one other pharma patent case, this one between Boehringer Ingelheim and Lupin. Just as a result of the Takeda stipulation is longer, we’ll give attention to it for functions of this column. Considering that the stipulation was signed off on by a choose with numerous experience managing discovery in patent instances, on high of being negotiated by subtle patent litigants, there’s a lot to study from reviewing its key phrases.
As an preliminary matter, it’s specific within the stipulation that the necessity for distant depositions is COVID-19’s fault, whereas additionally acknowledging that the common guidelines of deposition process and proof usually are not being tossed apart because of this. In that vein, the events agreed that the stipulated procedures would cowl all of the remaining depositions within the case. At the identical time, the order makes plain that adherence to no matter well being tips are in place on the time of the deposition is a paramount concern. To that finish, the stipulation units forth the agreed-to supplier for the distant deposition supplier, as a method of leveling the technological enjoying area for both sides. Importantly, it’s acknowledged that any time spent coping with any technological snafus is not going to rely towards the witness-questioning deadlines under the FRCP. To keep away from these snafus, the events agreed to do a “test run,” with a essential part of that take a look at run being to make it possible for the witness has the identical technological instruments to take part because the well-heeled legal professionals attending the deposition.
What about prices? As is conventional, the taking social gathering bears main duty for getting the distant deposition arrange and carried out, with the defending social gathering on the hook for their very own orders of the transcript and video copy. Considering the numerous journey value that many depositions in patent instances entail, there may be at the least an inexpensive chance that the shift to distant depositions — even with the technological prices for setting them up and having them run easily — may lead to a web value financial savings for litigants. But any such financial savings could be a pittance, at the least within the context of a pharma patent dispute, what place value is commonly no object.
Perhaps most fascinating is the requirement that counsel and the witness abide by the distinction system by way of not sneaking a peek on the displays earlier than the deposition. At the identical time, it isn’t unusual to ship displays prematurely of a deposition to opposing counsel — and that I at the least have by no means had a difficulty what place somebody on the opposite aspect acted in something aside from an honorable method with respect to exhibit dealing with. While the witness is clearly allowed to take a look at the displays as they’re introduced throughout testament, taking a look at exterior data sources (with out the categorical permission of counsel) is verboten.
A typical supply of heated discussion throughout depositions is the follow of teaching witnesses throughout breaks, even in these jurisdictions what place the foundations towards such conduct are extra strictly enforced. With a distant deposition, that turns into a bit tougher to police, even because the stipulation requires strict avoidance of something that approaches witness teaching. During testament, the stipulation forbids any communication with the witness. At breaks, defending counsel is allowed to speak to the witness, so long as it’s in “the manner permitted” under native and federal guidelines governing conversations in between giving testament.
Ultimately, each the primary and final paragraphs of the stipulation convey the principle thrust of the state of affairs. Depositions are an necessary discovery instrument and important for trial preparation, however we’re within the midst of a pandemic. At the identical time, the lodging that enable for distant depositions to proceed usually are not an excuse for any lapse in adherence to the “typical rules of professionalism and etiquette during depositions” by counsel on both aspect. While stipulations governing distant depositions can meet favor with judges, the allowances carry with them duty that counsel and litigants should adhere to. During COVID-19 it’s distant depositions sure, however the management over how they’re dealt with stays with the court docket.
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Gaston Kroub lives in Brooklyn and is a founding companion of Kroub, Silbersher & Kolmykov PLLC, an mental property litigation boutique, and Markman Advisors LLC, a number one consultancy on patent points for the funding neighborhood. Gaston’s follow focuses on mental property litigation and related counseling, with a robust give attention to patent issues. You can reach him at email@example.com or comply with him on Twitter: @gkroub.