West vs. East – How Similar Are the Eastern and Western Districts of Texas?
The Eastern District of Texas started the “rocket docket” for patent litigation (generally considered to have begun with Judge Ward’s 2001 issuance of the Court’s Patent Rules) many years before the recent rise of the Western District of Texas and its steady march towards the number one spot for patent case filings. So, how similar are the two districts, and what are some considerations for potential litigators filing in either district? In this post I want to address some of the more intangible considerations – considerations that may not readily come to mind before filing.
But first, a point of clarification. Although the Waco Division is within the WDTX, it is NOT actually in “West Texas.” Far from it. In fact, Waco is about as central as you can be in Texas and is distinctly different from what Texans would consider as “West Texas.” (Cue Marty Robbins.) Oil and gas are not staples of the local economy in central Texas, unlike what most Texans would consider as “West Texas” (i.e, Midland). Trial lawyers be warned – your analogies referring to oil in opening statements may just fall on deaf ears.
As most attorneys (or at least most attorneys reading this blog) are presumably aware, the EDTX has a set of local Patent Rules. In contrast, the WDTX provides no local patent rules, Judge Albright instead uses an Order Governing Proceedings (OGP) for patent cases filed in his court. Without going through every rule, two significant differences stand out.
First, Judge Albright stays discovery until the day after the Markman hearing is concluded. While at first blush this rule appears to favor defendants, the OGP requires defendants when stating its preliminary invalidity contentions to provide summary and annual sales information for the accused products for the two years preceding the filing of the complaint. In short, Judge Albright attempts to balance the respective burdens for both plaintiffs and defendants.
Second, Judge Albright allows parties to “amend preliminary infringement contentions and preliminary invalidity contentions without leave of court so long as counsel certifies that it undertook reasonable efforts to prepare its preliminary contentions and the amendment is based on material identified after those preliminary contentions were served, and should do so seasonably upon identifying any such material.” Thus, Judge Albright allows post-Markman amendments, recognizing that claim construction could alter either party’s contentions. The EDTX, however, requires leave of court, unless such amendments are in response to the Court’s claim construction ruling. Of course, there are numerous differences between Judge Albright’s OGP and the EDTX patent rules, so careful attention to detail is key.
Although it is easy to gloss over the differences in location, I believe it to be very significant. The distance between Marshall (the site of the majority of the EDTX’s currently pending patent cases) and Waco (Judge Albright’s Court) is 200 miles, which is about the same as the distance between New York City and Washington, D.C. Although the EDTX has several larger cities (Plano, McKinney, and Frisco, to name a few), the district lacks one distinct characteristic: tech companies. This is not to suggest that the EDTX has no technology companies. However, the WDTX has arguably the largest concentration of technology companies outside of Silicon Valley located only 90 miles from Waco—the city of Austin. Several large technology companies have large campuses located in the surrounding Austin area. Moreover, many defendants that can be sued in the EDTX can also be sued in the WDTX; however, it does not go both ways. Generally, many defendants can only be sued in the WDTX because they have no presence in the EDTX. Thus, proper venue for many defendants can be significantly easier to achieve in the WDTX as compared to the EDTX. Additionally, because venue must be proper for each defendant, it would likely be more difficult to establish proper venue in the EDTX over multiple defendants in the same case. However, the WDTX does not have such a problem, as venue is more easily obtained because of the WDTX’s location and the significant presence of most patent defendants.
Another important difference is the potential jury makeup for patent trials is notably different in the WDTX when compared to the EDTX. To narrow the field somewhat, let’s compare Waco and Marshall. The Waco division is made up of Bell, Bosque, Coryell, Falls, Freestone, Hamilton, Hill, Leon, Limestone, McLennan, Milam, Robertson, and Somervell counties. McLennan County is the location of the Waco Division courthouse and the city of Waco. Waco, as compared to Marshall, has a much larger population (138,183 vs. 20,091 according to Google.com). My point is this: the demographic makeup of a Waco jury is going to be relatively different than the makeup of a Marshall jury. For instance, Waco is home to L3Harris, SpaceX, Baylor University, Texas State Technical College, M&M Mars, Providence and Hillcrest hospitals, and other large companies and institutions. Not to mention the fact that Bell County, which includes the cities of Killeen and Temple (populations of 149,103 & 76,256, respectively), are relatively large as compared to any city in the Marshall Division. The Waco Division also has several counties that are much more rural in nature, with significantly less business presence. Additionally, the Waco division contains a large military presence. Waco is the home to a regional veteran’s hospital, and located only 40 miles away, is one of the largest United States Army bases in the county—Fort Hood. Thus, a Waco jury is likely to be a mix of professionals (including engineers) as well as individuals from the more rural counties, such as Falls or Somervell counties, and many veterans.
The Marshall Division is composed of the following counties: Camp, Cass, Harrison (the division’s location), Marion, Morris, and Upshur. In fact, McLennan County alone has a larger population than the entire Marshall Division combined. Marshall, due to its smaller size and eastern location within Texas, does not have a large business presence. Additionally, it has little to no military presence and is generally made up of mostly rural counties. Thus, it is very likely a Marshall Division jury will have significantly fewer business professionals and military personnel/veterans, and it is likely to include more individuals from rural areas, than the Waco Division.
Another important consideration is Waco’s central location in the state of Texas. According to google.com, Waco is 97 miles from Dallas, 185 miles from Houston, and 100 miles from Austin. Marshall, on the other hand, is 151 miles from Dallas, 219 miles from Houston, and 337 miles from Austin. Parties based out of the larger cities may want to take these distances into consideration before filing suit.
Although it is more convenient for parties in Dallas to file suit in the Sherman Division of the EDTX (Sherman is 65 miles from Dallas; Plano is 27 miles) than Waco, another potential issue arises. Unlike Waco, parties filing in the Sherman Division are filing in a two-judge division. Thus, parties do not know which district judge will be assigned to their case.
Additionally, Waco has a regional airport, which has direct flights from Dallas-Fort Worth Airport. Thus, people traveling from outside of Texas will have a much easier (and probably cheaper) time traveling to Waco than Marshall, as Marshall lacks such an airport.
Finally, another important consideration is the choice of accommodations. Waco has four large hotels (Hilton Waco, Courtyard by Marriott, Hotel Indigo, and Sheraton) all within one mile of the Waco Division Courthouse. City-wide, Waco has over 80 hotels, all of which are within 20 minutes of the Waco Division Courthouse. Conversely, Marshall has no hotels within one mile of the courthouse, and significantly fewer than Waco. However, the several hotels in Marshall are within a 10-minute drive to the courthouse.
Although the WDTX might be the new patent hotspot, the EDTX as a patent venue has been around for a long time. As such, practitioners filing in the EDTX have a plethora of prior decisions available concerning the most common disputes in discovery and other types of motions, making predicting how a particular judge might view an issue more manageable. Oppositely, Judge Albright’s court is still relatively new, and practitioners may have a much more difficult time predicting how Judge Albright might handle a particular issue. For example, as of the time of this writing, Judge Albright has ruled on less than ten patent summary judgment motions. Furthermore, Judge Albright strongly encourages practitioners in his court to minimize formal motion practice. Instead, Judge Albright prefers to handle discovery disputes via telephonic conference on an accelerated basis (although he often asks for each side to submit position letters prior to the hearing). The benefit of this practice is the quick and timely resolution of discovery issues (see our conversation with Judge Albright). However, with no written orders concerning the multitude of discovery related topics, it can be difficult for those unfamiliar with Judge Albright’s court to gauge his particular disposition concerning discovery issues. Thus, for those practitioners looking for a more developed written body of jurisprudence on certain issues, the EDTX might be the preferable venue.
Another significant difference between the Waco Division and Marshall Division relates to each division’s docket. According to a U.S. District Courts Report, the WDTX is the third busiest district within the Fifth Circuit. According to the report (which isn’t broken down by division), the average district judge in the WDTX has 329 civil and 783 criminal cases. Of course, these numbers are slightly skewed, as Judge Albright has significantly more than 329 civil cases and the divisions near the border with Mexico have a significantly larger criminal docket than the Waco Division. However, the point remains the same: Judge Albright has a substantial criminal docket, as well as a significant non-patent civil docket. In the EDTX, using the same report, the average district judge had 380 civil and 131 criminal cases. Again, the numbers are not a perfect comparison, but Judge Gilstrap’s docket has few criminal cases and few non-patent civil cases. The data is displayed below:
|Overall Caseload Statistics|
|Pending Cases||Mar 31 2019||Mar 31 2020|
|Actions per Judgeship||Total||1,173||1,227|
|Supervised Release Hearings||110||115|
|Overall Caseload Statistics|
|Pending Cases||Mar 31 2019||Mar 31 2020|
|Actions per Judgeship||Total||524||512|
|Supervised Release Hearings||1||1|
Because the Marshall Division, in comparison to the Waco Division, has significantly fewer non-patent civil cases and criminal cases, court personnel can focus more readily on the active patent cases. Judge Albright must contend with the Speedy Trial Act, so generally speaking, criminal trials must be given priority over other civil cases, including patent litigation. Although the additional non-patent civil and criminal cases have not impacted Judge Albright’s time-to-trial or scheduling of patent cases, it remains to be seen what impact these additional cases will have on the Waco Division in the future. This is something plaintiffs should keep an eye on, as time to trial may eventually slow down to accommodate the numerous criminal and non-patent civil cases. Time will tell.Like (1)