The Federal Bar Association Presents Seminar on Eastern District of Virginia Procedure
Twombly, Iqubal, Winter, eBay and Real Truth About Obama. To many, these names make little sense, but to intellectual property litigators, they are well-known examples of the constantly changing nature of federal procedure. On September 29, a seminar sponsored by the Richmond Chapter of the Federal Bar Association offered some guidance through these cases and the procedural thicket in the Eastern District of Virginia.
The seminar, titled “Procedural Issues in Civil Litigation in the Richmond Division of the Rocket Docket,” included excellent written materials (found here) and featured a panel of speakers that included Senior U.S. District Judge Robert E. Payne, David Anthony of Troutman Sanders LLP and Maya M. Eckstein of Hunton & Williams LLP.
For a recap of the panel's comments, see below. For more on litigating intellectual property cases in the Rocket Docket of the Eastern District of Virginia, see our article found here.
- Litigators spend a tremendous amount of effort to prove liability, but too little on damages. Plaintiffs need to make sure they have solid evidence of damages, and defendants should not leave the jury with only the plaintiff’s evidence to consider.
- Lawyers should hesitate to combine a motion to dismiss under FRCP 12 with an alternative motion for summary judgment under FRCP 56. The two rules apply very different standards and it is rare that summary judgment is appropriate at the Rule 12 stage.
- Quibbling over small discovery disputes adversely affects the credibility of lawyers before the Court and ultimately impact whom the Court believes is reliable.
- More intellectual property cases are being filed in the EDVA because the speed of the “Rocket Docket” is attractive to plaintiffs. As the Eastern District of Texas slows down, the EDVA can expect to continue to receive a high volume of IP cases.
- While there is little litigation about e-discovery in the EDVA, spoliation claims are becoming more common. The panel recommended the protocol for e-discovery from the District of Maryland that is posted here.
- The primary shortcoming in motions to transfer venue under 28 U.S.C. 1404(a) is the failure to provide specific information as to the identity, relevance and location of out-of-state witnesses. Conclusory allegations about inconvenience to witnesses are insufficient.
- After eBay, the traditional four-factor test for an injunction applies in patent cases like every other case, but the impact of eBay is still working itself out at the District Court level.
- The Court is seeing a success rate of 70%-80% with settlement conferences, but lawyers and parties can still be “mule-headed” about talking. In patent cases, settlement either occurs early in the case or not at all.
- The EDVA judges are scrutinizing requests to seal documents more closely because of the broad scope of documents that lawyers are filing under seal.
- Local Rule 37’s requirement that parties meet and confer before filing motions to compel does not apply to other motions, but parties should meet and confer on other issues as well and memorialize their agreements. As the panel said, “it’s always a good idea to talk to your adversary.”
