Tag: #StandingOrder

New Order re Filing Documents Under Seal and Redacted Public Versions

Judge Albright has entered a new Standing Order Regarding Filing Documents Under Seal and Redacted Public Versions. The Order is almost identical to the previous order from February 2021, with the addition of this language:

“When this Court enters an order resolving a motion in which one or more of the parties filed briefing under seal, the Court will enter its order under seal. The movant shall follow the above protocol and file a publicly available, redacted version of the Court’s sealed order within seven days after the Court enters the sealed order.”

New Order Governing Proceedings – Patent Cases – OGP Version 3.5

Judge Albright entered a revised Order Governing Proceedings – Patent Cases: OGP Version 3.5. Some notable changes include:

Page limits:

There is still no limit on the number of motions for summary judgment, Daubert motions, or motions in limine that can be filed. However, the Court has added page limits for Daubert motions and MILs. Absent leave of Court, the cumulative page limits for opening briefs are:

  • All Motions for Summary Judgment: 40 pages per side;
  • All Daubert motions: 40 pages per side;
  • All Motions in Limine: 15 pages per side.

Responsive briefs for MSJ, Daubert, and MIL briefs are limited to the pages utilized in opening briefs or by the local rules, whichever is greater. Reply brief page limits shall be governed by the local rules.

Discovery Disputes:

If the parties are at an impasse after lead counsel have met and conferred, the requesting party shall email a summary of the issue(s) and specific relief requested to opposing counsel. The email shall not exceed 500 words and shall include all counsel of record. The responding party shall have three business days thereafter to provide an email response, also not to exceed 500 words. In situations where multiple items are at issue in the dispute (such as responses to interrogatories or categories of document production), the Court encourages the parties to provide their submission in a table format (also not more than 500 words per side), which identifies the disputed issues and specific relief requested.
Once the opposing party provides its response, the requesting party shall email the responsible law clerk (or the following email address if the assigned law clerk is not known: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov) a combined email with the summary positions from both sides. Thereafter, the Court will provide guidance to the parties regarding the dispute, or arrange a telephonic hearing if the Court determines that additional argument would be of benefit.

Motions to Transfer:

The Reply deadline is now 14 days after the Responsive Brief (previously 7 days).

Courtesy Copies of Briefing for the Court:

For Markman briefs, MSJs, and Daubert motions, the parties must jointly deliver to Chambers one paper copy printed double-sided of the Opening, Response, and Reply briefs, omitting attachments, at least 10 days before the hearing. Plaintiff shall be responsible for delivering a combined set of paper copies to chambers, unless there is an agreement to the contrary.

Each party shall also provide an electronic copy of the briefs, exhibits, and the optional technology tutorial via USB drive (previously there was an option to upload copies to Box).

New General Issues:

10. When filing the Joint Claim Construction Statement or proposed Protective Order, the parties shall also email the law clerk a Word version of the filed documents.

11. For all non-dispositive motions, the parties shall submit a proposed Order. The proposedOrder shall omit the word “Proposed” from the title.

2nd Amended Standing Order Re Motions for Inter-District Transfer

Today, Judge Albright entered his Second Amended Standing Order Regarding Motions for Inter-District Transfer, which replaces the previous June 8 Order.

The Second Amended Order still requires a party who has filed a motion for inter-district transfer to provide the Court with a report regarding the briefing status prior to the Markman hearing, but with a few changes:

  1. A party must file the status report with respect to whether the motion has been fully briefed and is ready for resolution no later than four weeks prior to the date of the Markman hearing (amended from six weeks in the prior order).
  2. If, by one week before the Markman hearing, the Court has not ruled on a pending inter-district motion to transfer, the moving party is directed to email the Court’s law clerk and the technical advisor (if appointed) to indicate that the motion to transfer is pending.

Below is the text of a portion of the Second Amended Order with the amendments highlighted. The full Standing Order can be found HERE.

New Standing Order Re Joint/Unopposed Requests

Judge Albright has entered a new Standing Order Regarding Joint or Unopposed Request to Change Deadlines.

Any request to extend a deadline or amend a scheduling order will be automatically granted as long as: (1) it is unopposed or agreed; and (2) it does not change any hearing/trial date or any final submission to the Court related to a hearing/trial.

The parties must file this as a Request instead of a Motion.

Judge Albright’s New Standing Orders

Standing Order for Discovery Hearings in Patent Cases:

Today, Judge Albright entered a new Standing Order for Discovery Hearings in Patent Cases. No later than 7 days after a discovery hearing, the prevailing party must submit a proposed order briefly summarizing the dispute and the parties’ understanding of the Court’s ruling. If the parties cannot agree on the language in the proposed order, they may submit respective proposed orders to the Court for resolution.

The Court has noted recently that that many discovery hearings involve the same disputed issues. This new procedure will provide a written order memorializing the Court’s ruling. Parties who later have the same discovery dispute will then benefit from the Court’s previous rulings which will hopefully decrease the number of discovery hearings regarding the same issues.

Amended Standing Order Regarding Notice of Readiness for Patent Cases – Version 2.2:

Yesterday, Judge Albright entered an Amended Standing Order Regarding Notice of Readiness for Patent Cases. The major amendment involves situations where there are “CRSR Related Cases”, defined as cases that (1) are filed within 30 days after the first case is filed; and (2) share at least one common asserted patent.

Judge Albright Confirms His First Patent Jury Trial Will Proceed

Judge Albright has again confirmed that his first patent jury trial since taking the bench will proceed on October 5. In his latest Divisional Standing Order he reiterated that the Waco Division has “undertaken great efforts to ensure trials can be conducted safely” and is “confident, as things stand today, it can conduct fair trials in a safe manner.”

The final pretrial conference for MV3 Partners LLC v. Roku, Inc. took place this week, with jury selection set for October 1 and trial October 5.

This Standing Order was entered in accordance with the WDTX Eighth Supplemental Order on Court Operations During COVID, entered earlier this week, which continued all jury trials currently set through October 31. However, this latest district-wide order maintained the spirit of its previous order, giving the individual divisions within the district the discretion to proceed with jury trials if the division determined the trials can be conducted safely. Judge Albright exercised his discretion to proceed with jury trials, ensuring appropriate health and safety precautions will be undertaken.

This parallels the series of events in August when the WDTX Seventh Supplemental Order on Court Operations During COVID was entered, continuing all trials through September 30, yet giving each division discretion to proceed (see previous post HERE). In accordance with that Order, Judge Albright entered his first Divisional Standing Order determining that the Waco Division would take appropriate precautions to allow jury trials to proceed safely starting September 1 (see previous post HERE).

Order Governing Proceedings Version 3.0

Judge Albright has posted a revised Order Governing Proceedings (OGP) for Patent Cases under his Standing Orders. Here are the key changes to be aware of:


Venue and jurisdictional discovery permitted pre-Markman:

The Order previously stayed discovery until after the Markman hearing except for claim construction related discovery or exceptional circumstances. However, Judge Albright routinely permitted parties’ requests to conduct targeted venue and jurisdictional discovery in conjunction with such motions.  As a result, these two categories of discovery are now explicitly included in the OGP.

Claim Construction:

Presumed limits for number of claim terms to be construed:

The Court now provides the following limits for the maximum number of claim terms that the parties may request the Court construe, without further leave of Court:

1-2 patents: 10 terms

3-5 patents: 12 terms

> 5 patents: 15 terms

Leave of Court must be obtained prior to requesting construction of additional terms. If the Court grants leave, the Court may split the Markman hearing into two days depending on complexity and number of terms.

Joint Claim Construction Statement:

Parties should specifically indicate which party/side proposed each construction or whether it was a joint proposal.

Markman Hearing:

Optional Technology Tutorials:

Tech tutorials should be submitted in electronic form not later than one week prior to the Markman hearing (this deadline is now part of Appendix A, the Default Schedule, as well). The tutorial should be about 15-minutes long.

Live Tutorials: If a party wishes to have a live tech tutorial, the parties should contact the Court to set up a Zoom or telephonic tutorial to occur at least a week before the hearing.

(For more detail on tech tutorials, take a look at our April 8 post and the exemplary tech tutorials posted on the Court’s website HERE)

General Issues:

Submission of Briefs via audio file:

The Court asks any party considering submitting a brief via audio file to first contact the Court to see if it would be helpful to the Court to receive such audio file.  The Court has now concluded that an audio recording of a Markman brief should not be submitted because it provides limited value.  This is a departure from the prior Order where Judge Albright was testing out the added value of having Markman briefing submitted via audio file.

Submission of Paper Briefing:

For Markman, MSJ, and Daubert briefing, each party must deliver a paper copy to chambers of its Opening, Response, and Reply, without attachments, by the earlier of: one week after the last-filed brief or at least a week before the hearing.

Notification of IPR:

Within two weeks of the filing of an IPR, Plaintiff must file a notice informing the Court: (1) when an IPR is filed; (2) the expected time for an institution decision; and (3) the expected time for a final written decision

Contacting the Court:

If the parties need to email the Court, they are directed to use the following email: TXWDml_LawClerks_JudgeAlbright@txwd.uscourts.gov

Western District Continues All Trials Through May 1 Amid COVID-19 Pandemic

The Chief Judge of the Western District of Texas just issued an Order Regarding Court Operations Under the Exigent Circumstances Created by the COVID-19 Pandemic.

Of note: “All civil and criminal bench and jury trials scheduled to begin on any date from now through May 1, 2020, are continued, to a date to be reset by each presiding judge.” (See below for entire text of the Order).

It is too early to tell how that will effect the calendar in the months to come, especially given the speedy trial clock attached to criminal trials which will put them at the forefront of the schedule. We will keep you updated as things progress.

Standing Order Re COVID-19

It has issued: The Waco Division’s Standing Order Regarding Coronavirus (COVID-19) and Court Proceedings (full text of the Order below).

At this uncertain time, we should all be mindful of the Court’s desire to accommodate other counsel’s and party’s situations and remember to be courteous to each other as we all attempt to balance the importance of public health with our clients’ needs. And please wash your hands!