by Dennis Crouch
Federal Courts have been delaying trials since March 2020. There have been a handful here and there – but not jury trials.
One patent case preparing for a jury trial before Judge Leonard Stark (D.Del) is Sunoco Partners Marketing & Terminals L.P. v. Powder Springs Logistics, LLC, 2020 WL 3605623 (D. Del. July 2, 2020). The lawsuit was filed back in 2017 alleging infringement of Sunoco’s patents for cutting its gasoline with cheaper butane. US9494948 and US9606548 (“continuous in-line blending of butane and petroleum”).
In a recent order, Judge Stark announced that he is moving forward with an in-person jury trial, albeit with a few exceptions.
[Read the Order: RemoteJuryTrialOrder]
No face-to-face witness testimony. The key aspect of the order is that the trial will move forward without witnesses being in the court room. Rather, testimony will be remote. Although the defendants argued that they could not “receive a fair trial if all the witness examinations must be handled remotely,” Judge Stark concluded that “skilled trial counsel” will make it work. “I expect that the jury will be given what it needs to make necessary factual findings, including credibility assessments.” Id. Although not directly in the order, the witness testimony will presumably be via video.
Part of why the court did this was to avoid the politics of face coverings.
By excluding all witnesses from testifying in court, the Court will not confront the issue of whether to permit or require witnesses to testify with face coverings (or alternatively to prohibit witnesses from doing so).
In my opinion, avoiding the politics-of-masks is a horrible reason for the judge to make the call for remote testimony. On the other hand, the court also gave a very sensible back-up reason:
Not having witnesses in the courtroom will also make it much easier to maintain social distancing in the courtroom and protect the health of those in the courtroom.
Id. In addition to no witness testimony, the court will also be closed except for 4-reps for the plaintiff and 3-reps for each defendant (including local counsel). These are the total numbers for the whole trial (no swapping). The trial will be simulcast to video. However, the court is only going to simulcast it to another courtroom and observers can attend there. Hopefully the video will be recorded.
Note on my title: The 6th Amendment of the U.S. Constitution includes a defendant’s right to “be confronted with the witnesses against him.” However, the provision is limited to “criminal prosecutions” not civil actions such as patent cases.
Thanks to Robert A. Matthews (https://www.matthewspatentlaw.com/) for directing me to the decision.