Another Procedural Update: OGP v3.4
Fresh off last week’s updates to Judge Albright’s Standing Orders (covered here and here); this week brings a further update, in the form of version 3.4 of the Court’s Order Governing Proceedings. It’s been only about four months since the Court rolled out OGP v3.3, and it’s fair to say this is just a series of small-to-medium tweaks, rather than a major overhaul.
Here are the highlights:
- Markman briefing: For all cases with opening Markman briefs due 30 days or more from today, the order of parties flips, and now defendants file the opening brief. The Court has publicly commented that this is based on feedback from the bar to the effect that defendants (usually, though not always) tend to pursue the majority of construction positions—not to mention that indefiniteness issues are of course always raised by defendants.
- Deposition conduct: The Court makes clear what is, and is not, allowed as proper deposition practice; we’ll quote the new provision in full: “Speaking objections during depositions are improper. Objections during depositions shall be stated concisely and in a nonargumentative and nonsuggestive manner. Examples of permissible objections include: ‘Objection, leading,’ ‘Objection, compound,’ ‘Objection, vague.’ Other than to evaluate privilege issues, counsel should not confer with a witness while a question is pending. Counsel may confer with witnesses during breaks in a deposition without waiving any otherwise applicable privilege.”
- Early damages production: The Court has substituted new language regarding pre-Markman production of sales figures (and other damages-relevant information—e.g., licenses) by the defendant, to clarify that such production is intended to “promote early resolution,” and is strictly “optional” (albeit “encourage[d]”) before fact discovery opens.
- Technology tutorials: OGP v3.4 notes that the tech tutorial is “especially” optional “in cases where a technical advisor has been appointed,” and also removes the former option to request to present the tutorial live.
- Discovery disputes: OGP v3.4 updates instructions for discovery disputes to incorporate the post-hearing procedures in the Court’s new Standing Order for Discovery Hearings in Patent Cases, and to slightly tweak the parties’ pre-hearing directive to “submit a chart,” after meeting and conferring, “that summarizes the issue(s) in dispute along with the parties’ respective positions and specific relief requested.”
- Markman hearing date: The default schedule annexed to OGP v3.4 now notes that the claim construction hearing date “is a placeholder and the Court may adjust this date as the Markman hearing approaches.”
- Remote access: OGP v3.4 disseminates default Zoom credentials to observe “non-private hearings,” which the public is explicitly “allowed to attend”: https://txwd-uscourts.zoomgov.com/j/16057076711?pwd=WHljN0h3Yk03K3JLUTZ2a0tTMitPZz09; one-touch dial-in is +16692545252,,16057076711#,,1#,873559#
- Case Management Conference: Procedures for setting the initial CMC now simply cross-reference the Court’s recently updated Standing Order Regarding Notice of Readiness in Patent Cases.