Gibbons Law Alert

Gibbons Law Alert

Tagged: E-Discovery

Motion Granted to Amend Joint Claim Construction and Prehearing Statement

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Posted in Patent

On October 30, 2024

In Fennec v. Cipla, the United States District Court for the District of New Jersey recently granted Fennec Pharmaceuticals Inc.’s (“Fennec”) motion to amend the Joint Claim Construction and Prehearing Statement to add constructions of two disputed terms that were consistent with the relevant patent’s express language. Fennec is a Hatch-Waxman litigation involving several patents covering Fennec’s Pedmark® product. Pursuant to Local Patent Rule 4.3, the parties are required to file a Joint Claim Construction and Prehearing Statement (“JCCPS”) that contains “[e]ach party’s proposed construction of each disputed term” and is filed within 30 days after the exchange of preliminary claim constructions and 45 days before the parties opening claim construction briefs are due. Amendments to the JCCPS require a motion demonstrating good cause under Local Patent Rule 3.7. One month after the parties submitted the JCCPS, Fennec informed defendants Cipla Limited and Cipla USA, Inc. (collectively, “Cipla”) that Fennec wanted to amend the proposed construction of certain claim terms to mirror the definitions of those terms in the patent. The parties met and conferred regarding the issue, and after reaching an impasse, Fennec filed its motion for leave to amend. The court granted Fennec’s motion, finding that it was timely, supported by good cause, and Cipla would not be unduly prejudiced. The court found...

The District of Delaware Adopts the Federal Circuit’s Factors in Rejecting Regulatory Bar in a Protective Order

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Posted in Pharmaceuticals

On August 30, 2023

In Amicus Therapeutics US, LLC v. Teva Pharmaceuticals USA, Inc., United States Magistrate Judge Christopher J. Burke rejected the defendants-generic drug manufacturers’ demand that a so-called regulatory bar be included in the parties’ proposed protective order. In denying the request, Judge Burke adopted the Federal Circuit’s approach as set forth in cases like In re Deutsche Bank Trust Co. Ams., 605 F.3d 1373 (Fed. Cir. 2010). Despite denying the defendants’ request, and while noting the rarity of courts ordering the inclusion of similar provisions in protective orders, Judge Burke explicitly left the door open to the possibility, emphasizing the highly fact-sensitive nature of these disputes. The defendants sought the inclusion of a regulatory bar that would preclude anyone who was granted access to information marked “Confidential” or “Highly Confidential” under the proposed protective order from participating in any FDA proceedings concerning migalastat (the drug at issue in the case), including by filing a citizen petition. In deciding under what factors to analyze this discovery dispute, Judge Burke identified two possibilities: (a) the Third Circuit’s Pansy factors, or (b) the Federal Circuit’s Deutsche Bank factors. The court and the parties agreed the latter should be applied because the Third Circuit’s Pansy factors generally concern whether information should be protected from intentional disclosure from the public, whereas...

Discovery of Source Code in Patent Litigation

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Posted in Patent

On January 30, 2013

Discovery of computer source code–either through production, inspection, or deposition–is one of the more contentious aspects of patent litigation. Indeed, “few tasks excite a defendant less . . . . Engineers and management howl at the notion of providing strangers, and especially a fierce competitor, access to the crown jewels. Counsel struggle to understand even exactly what code exists and exactly how it can be made available for reasonable inspection. All sorts of questions are immediately posed. . . . Put simply, source code production is disruptive, expensive, and fraught with monumental opportunities to screw up.” Apple Inc. v. Samsung Elecs. Co., No. 11-1846, 2012 U.S. Dist. LEXIS 62971, *10-11 (N.D. Cal. May 4, 2012) (ECF No. 898).

CAFC Chief Judge Rader on Curbing E-Discovery, Part II

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Posted in E-Discovery / Patent

On April 13, 2012

In succession to remarks he made this past Fall about the soaring costs of electronic discovery in IP cases and unveiling the Model Order Regarding E-Discovery in Patent Cases, Federal Circuit Chief Judge Randall Rader recently told the ABA Section of IP Law that both the bar and the bench together, must continue to rein in the high costs of e-discovery. Chief Judge Rader suggested that attorneys’ need to limit their e-discovery requests and courts should consider implementing rules to facilitate efficient and cost effective discovery, as many have begun to do.

Risky Business: Cybercrime in the New Economy

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Posted in E-Commerce / Privacy and Data Security

On November 11, 2011

Cybercrime has increased tremendously in the digital economy. “According to the American Society for Industrial Security, American businesses [are] losing $250 billion a year from intellectual property theft since the mid-1990’s.” There is a clear and growing threat of Chinese industrial espionage targeted at American companies. In a recent case, a Michigan couple was accused of stealing $40 million worth of trade secrets from General Motors and selling them to a Chinese car maker. Aside from hackers, the threat also exists within organizations from insiders. A recent study commissioned by Cisco found that “[i]n the hands of uninformed, careless, or disgruntled employees, every device that accesses the network or stores data is a potential risk to intellectual property or sensitive customer data.”

Expert Panel Offers Advice On Executing Effective Legal Holds Following Pension Committee, Rimkus and Victor Stanley II At Gibbons Fourth Annual E-Discovery Conference

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Posted in Litigation Preparedness and Strategies

On November 8, 2010

The failure to properly implement, monitor and refine legal holds can have devastating results, transforming manageable legal issues into high-stakes nightmares. To offer guidance on avoiding this, on Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, where it assembled a panel of experts for a roundtable discussion on legal hold best practices after the issuance this year of three must-read decisions on this topic: Pension Committee, Rimkus and Victor Stanley II.

Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus

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Posted in E-Discovery

On November 2, 2010

Relevance. Scienter. Prejudice. These three themes permeated a roundtable discussion entitled “Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus” during Gibbons Fourth Annual E-Discovery Conference on October 28, 2010, at Gibbons headquarters in Newark, New Jersey. A distinguished panel discussed legal hold best practices and lessons learned from recent decisions, including proactive measures and creative strategies for companies of all sizes to meet their e-discovery obligations. E-discovery preservation obligations have been a critical issue in employment litigation since Judge Scheindlin’s groundbreaking opinion in Zubulake v. UBS Warburg (in which the defendant/employer was sanctioned for failing to preserve documents in a sex discrimination case brought under Title VII).

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