A Q&A with Judge Albright

Below is the continuation of my interview with Judge Albright, in which we discuss his philosophy on certain motions, and briefly cover a few personal questions.

MS: As of now, you haven’t hired any technical advisors to assist you with patent cases. Is this something you think will ever change? If so, why?

JUDGE ALBRIGHT: I think it is likely that I will be hiring a technical advisor for a number of reasons. One, as you noted, we’ve gone from almost no patent cases to 700, meaning we need more bandwidth. Even if I have an additional law clerk and get an additional magistrate, that doesn’t mean there wouldn’t be a need for some additional bandwidth. Also, I’ve also got a better idea of who I might use to fulfill that job. I feel like I can completely trust the individuals who I am thinking about hiring in what they are doing, and importantly, I think the folks I am thinking of using as technical advisors now are people who the legal community, the consumers of what I do, would feel very comfortable with those people because they will be so familiar with whoever I use.

MS: Judge, I want to switch gears and talk about some of your views concerning certain types of motions. Recently, you were a part of a judicial panel held by the Sedona Conference Patent Litigation Working Group. One of the moderators, in discussing 101 motions, stated that he believed the role of the Markman hearing is a theoretical question rather than a practical question when addressing these motions at the motion to dismiss stage. Do you think this view is correct?

JUDGE ALBRIGHT: You know, I think he was trying to make a more esoteric point than what I deal with as a boots-on-the-ground judge. It is my general philosophy that a 101 motion is better suited as a motion for summary judgment and treated not unlike a 103 motion would be treated, meaning that it would be dealt with later in the suit, rather than in an early motion to dismiss. That doesn’t mean when we get motions to dismiss under Rule 101 at the early stages that we just deny them without seriously considering them. We do seriously consider every 101 motion, and if there was one that I thought was appropriate to grant, I would grant it.

But my general philosophy is that [101 motions] are issues that should be dealt with at summary judgment since it is rare that a plaintiff can’t come up with a fact issue or a legal issue at a motion to dismiss stage and because Defendants can still take advantage of it at a motion for summary judgment stage.

MS: I also wanted to address 1404 motions—which I know you have seen your fair share. My first question is this this: In several orders now, you have pointed out the fact that the “location of documents” factor in the transfer analysis is at odds with modern patent litigation. Why do you believe that is the case, and do you think this should be changed?

JUDGE ALBRIGHT: I do, and I do. That’s not my job, and it’s really the Fifth Circuit that needs to address it, since we follow Fifth Circuit law. But I think that, of all the tools one has in the 1404 kit to figure out whether or not another location is clearly more convenient, we have a sea change from when I started practicing in the early 80s, where a young associate would spend days going through banker’s boxes of documents that were located wherever they were located. And I certainly understood that idea in terms of the location of documents. But now you have the situation where for a lot of cases, to the extent there are “documents,” they are all electronic. If [the documents] are contracts, they are electronic. If it is source code, it is definitely electronic. Fewer and fewer cases involve email, but to the extent there is email, email is electronic and can be provided easily. So, it is really hard to think, in the patent litigation context especially, if the case is one in which the defendant is a large company and the plaintiff is a nonpracticing entity, then the plaintiff doesn’t really have any documents to speak of, and the defendants documents are all electronic.

And if it were a competitor case, you would still have—in a typical patent case—the vast majority of documents would be accessible electronically. For example, take any big company that is in Austin but based in another state. The engineers in Austin aren’t worried about the fact that the “documents” are located in California, or vice versa. The engineers in Japan have the same access to “documents” that any other engineer has in the company. So, I think that’s served an anachronistic concept for purposes of deciding where patent litigation ought to be.

MS: Why the reluctance to transfer cases?

JUDGE ALBRIGHT: A couple of reasons. One is I think a plaintiff is entitled to file where they want to file, if the forum is appropriate. And you are asking about a situation where a defendant isn’t able to challenge venue, because I think venue needs to be looked at. If a case is filed in a location where venue is severely questionable, I think that’s jurisdictional and I think that’s something that ought to be dealt with as seriously as possible in terms of making sure it is appropriate for that defendant to be sued there. Because that is the way our system works. Venue is obviously important and there is a reason why we have a patent venue statue – that’s why we had TC Heartland.

My cases are in a lot of ways, are more about where people want to sue and where people want to be sued. Some people might call that forum shopping or whatever, but it is not forum shopping, in my opinion, where the venue is appropriate. I don’t really have an internal reluctance to transfer cases. We have plenty of patent cases to say grace over and having one more or one fewer case because we transferred it is not something I’m worried about. But I do think that if the plaintiff can establish venue in the Western District of Texas, and if they believe this is the appropriate place to file suit, then I think that is an important factor despite the fact that a defendant might be reluctant to be sued here.

Second, I do think it is extremely important that patent cases get resolved in a relatively quick period of time. If you are having to wait three, or four, or six years from the time you file a case and when you get to trial, as a former attorney who practiced patent litigation, half the time on the plaintiffs side, I think that’s bad for the system. And I know I have no control over how any other courts manage their docket or why it takes them whatever amount of time it takes them to get to trial or Markman, but I do know how I can run my court. I believe that one of the reasons that lawyers have decided to file their cases here is they feel like they have the opportunity to get to trial in a reasonable amount of time.

MS: Judge, what is your general view on damages, especially regarding a Daubert challenge?

JUDGE ALBRIGHT: This is a pretty important question. With the understanding that I handled dozens of cases where I handled the damages part of a trial. I am a huge believer that a district judge in a patent case has an absolute obligation to make sure that the methodology that the damages expert used is one that is permissible and whether it should be allowed. There is no way to cross examine an expert about the method he chose to use and whether it is correct or not, if the method is not reasonable based on the facts of the case.  You would just have lawyers saying that’s not the right way to do it, and him saying it is, or the two experts saying his method is wrong and mine is right. So, I am a big believer that [a Daubert challenge] is a very important gatekeeping function for me. I’m not just talking about plaintiffs’ damages either. I mean anyone who comes up with a formula for how damages ought to be done, it must pass muster through me.

But once I review the method and I’m convinced that method is appropriate and passes muster, then I’m pretty liberal in allowing in how the damages expert applied their method to the facts of the case. I believe lawyers then will be able to cross examine opposing damages experts on how they applied the method and whether they did it factually correctly.

I’m a strong believer in the gatekeeping function on Daubert challenges and what the purpose of Daubert is. And I think it’s a very important function.

MS: I understand the perception of some might be that you will not grant a motion for summary judgment. What is your philosophy on motions for summary judgment?

JUDGE ALBRIGHT: Yeah, that would be a misperception. That would be a serious misperception. And I think from the very first day I took the bench I have made that clear. I know I’ve heard other judges who have said “I’m not going to grant a motion for summary judgment because it is easier for me to try the case.” I have exactly the opposite belief. I think motions for summary judgment are an important tool for lawyers to get rid of issues that should be dismissed before trial.

With that being said, I think that lawyers who are wise about how they practice in front of me would severely limit the number of motions for summary judgment they file. It is rare a motion for summary judgment is meritorious. What I mean by that is if it is on the law, that may work, like a statute of limitations issue. But even that may fail if the other party is able to show a fact question about the statute of limitations in some way. But I am a big advocate of motions for summary judgment, however, were I practicing in front of me, I would probably not file more than one or two at the most. That would be a signal to me that this is an issue, as a lawyer, I feel very strongly about, and it actually has merit. However, when someone files six motions for summary judgment, my sense is they are less serious.

MS: I think a lot of people are very curious about this next question. How do you see the jury pool in your division compared to Marshall?

JUDGE ALBRIGHT: Having tried cases in Marshall, I think I would compare the Waco jury to a jury in Tyler. My sense is that Waco is more like Tyler or Sherman. Sherman has a great university in it, and Waco has a great university in it. My thinking about Tyler is that Tyler has a very robust medical community in it, as does Waco. I think that factor separates Waco from Marshall, as well as many other differences.

It is really amazing how big the Waco division is. It goes all the way south to Williamson county and all the way north to where the “y” is on I35. That’s a big geographic area, and so you are going to get a lot of different kinds of people, and maybe similar to people in the Tyler division.

MS: Before I let you go, I wanted to ask a few more personal questions. You have been characterized as a judge that attorneys enjoy arguing in front of. Why do you think you have this persona?

JUDGE ALBRIGHT: After getting on the bench, I never thought I was the brightest lawyer out there, but I knew that I could make up for that with enthusiasm. I would think to the extent that lawyers enjoy being in front of me, my guess would be it is because I enjoy being a judge in front of them.

It is rare I have a hearing with the quality of the lawyers I have gotten so far in my two years where I don’t leave the hearing feeling unbelievably lucky in having this job, in getting that level of professionalism. It’s like if you got a job as an umpire, and you started off handling the World Series. Hopefully people enjoy being in front of me, because I enjoy having them in front of me.

MS: What is your favorite stage of a patent case? What do you enjoy the most?

JUDGE ALBRIGHT: It would have to be trial. Though I like the academic exercise of the Markman a lot, but no doubt it is trial. I loved every patent case I tried as a lawyer, and I can’t wait to try cases as a judge.

MS: If you could ask the Federal Circuit or the Supreme Court to clear up one area of patent law, what would it be?

JUDGE ALBRIGHT: I think the two areas where there could be more guidance would be section 101 and motions to transfer. Unfortunately, the Federal Circuit can’t do much about clarifying 1404 issues.

MS: You have always stated you are available to resolve any dispute between parties very quickly and no one should hesitate to call the court. With that being said, what kinds of disputes make you roll your eyes?

JUDGE ALBRIGHT: You know, fortunately, I haven’t had many. I have had one or two disputes that have made me role my eyes, but they are rare. I’ve had probably 200 hearings where I thought I’m glad they brought that to me. Because I think both lawyers were doing the right thing in taking the positions they took, and if anything, if I’ve had to admonish lawyers if at all, for delaying too long in bringing issues to my attention because I have to adjust the schedule to accommodate fixing their issue. So, I would say it’s been unbelievably rare.

I guess if there is anything generic, it’s where they are almost asking me for parental advice. It’s like they want something that is metaphysical, where I can’t really do what they want me to do. If the other side does something that makes them unhappy, I will be able to deal with it after they did it, but it’s pretty rare I am able to prophetically tell lawyers how to act because the other side feels like they may do something bad.

I would put a positive spin on your question and say I’ve been really pleased about how rarely I have left a phone conversation thinking that’s 45-minutes I’ll never get back. Its happened, but very rare.

MS: What is the fastest turnaround time that you have done from request to telephonic?

JUDGE ALBRIGHT: Twelve Minutes!