With a hat tip to the Chicago Daily Law Bulletin’s coverage of the 7th Circuit Judicial Conference, Northern District Judges Durkin, St. Eve, and Tharp offered several valuable practice tips for litigating before federal courts, that apply as well for IP litigators as for any litigator.
- Reduce litigation costs. For example, there is no need to appear for brief status conferences, when you can appear by phone and cut out significant travel costs.
- Think carefully before filing summary judgment motions. They are a “huge expense” and counsel have no reason not to file them.
- Consider consenting to trial before a magistrate judge. Magistrate judges can offer faster times to trial because they do not have to focus on the constitutional right to a speed trial in criminal matters. He explains “[y]ou get great judges. Same law. Same juries.”
Judge St. Eve:
- It is important to cooperate with opposing counsel. “Be nice. It’s not that hard.”
- Look at the judge’s website. Ignorance of the judge’s procedures and requirements does not start counsel off well with the judge.
- Instead of starting a brief with a recitation of each pleading and ruling, offer a “pithy, short, concise” statement of the issue to be decided.
Chief Judge Holderman offered his final State of the Court speech last month. Judge Castillo takes over as Chief Judge July 1, 2013. Here are the highlights from the address:
- “Filings are up and funding is down.” While the state of the court is good, prposped further budget cuts and reduced funding may force reduced services in the future.
- For the fifth year in a row, overall civil filings were up .
- Jury trials dropped, going from 177 in 2011 to 168 in 2012.
- The combined jury trials for 2011 and 2012, however, are the largest number of trials in any two year period as far back as court records go.
- Patent filings increased from 239 in 2011 to 247 in 2012.. This continued a trend of increased patent filings in every year since the Northern District instiuted its Local Patent Rules in 2009.
- The Northern District remains in the top 10% of courts in terms of median time to disposition — 6.5 months for civil cases.
- The Northern District avoided the expected furloughs by not filling staff vacancies. The Clerk’s office is down to two-thirds of its allocated staff. Probation Department personnel may face three day furloughs because of fudning issues in that unit.
- Three new Article III judge joined the Court — Judges Durkin, Lee and Tharp.
- The Eastern Division added two magistrates — Magistrate Judges Rowland and Martin.
- The Western Division added Magistrate Judge Johnston.
- The Northern District has four judicial vacancies.
Sunlust Pictures, LLC v. Does 1-75, No. 12 C 1546, Slip Op. (N.D. Ill. Aug. 27, 2012) (Tharp, J.).
Judge Tharp denied Doe defendant’s motion to quash a subpoena seeking his identifying information from his cable provider in this BitTorrent copyright case, but allowed the Doe to proceed in the suit using a pseudonym. The Court also denied Doe’s motion to sever the Doe defendants. As an initial matter, while a party to a suit usually has no standing to move to quash a third party subpoena, there is an exception in cases such as this one where the subpoena implicates that party’s privacy. But Doe’s motion to quash was based upon an argument that the 75 Does were not properly joined. That, however, is not a valid ground for quashing a subpoena.
Plaintiff Sunlust’s joinder was not inappropriate in this case, despite district courts’ increasing concern regarding improper joinder of multiple Does in pornographic downloading cases around the country. Sunlust alleged that each Doe participated simultaneously in a single BitTorrent “swarm” and that the Does were sharing portions of the file between themselves as a part of that process. A swarm is the collective act of downloading a particular file. And joinder was further supported by Sunlust’s civil conspiracy claim alleging that the Does, as part of a single swarm, were engaged in a conspiracy to unlawfully distribute the copyrighted movie. Furthermore, the Does faced common legal and factual questions regarding Sunlust’s copyright claims.
In order to avoid abusive litigation tactics, the Court ordered that Sunlust only contact Doe through counsel and that Doe could proceed using a pseudonym, at least during discovery.