Leader Technologies Inc. v. Facebook Inc.

Filing 519

Official Transcript of Scheduling Conference held on 06-02-10 before Judge Joseph J. Farnan, Jr. Court Reporter/Transcriber Leonard A. Dibbs. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/30/2010. Redacted Transcript Deadline set for 7/12/2010. Release of Transcript Restriction set for 9/7/2010. (lad)

1

1

UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF DELAWARE

3
4

LEADER TECHNOLOGIES, INC.,

6

Plaintiff,

JUNE 2, 2010

:

7
8

CA. NO. 08-862-JJF

:

5

:

:
v.

12:30 O'CLOCK P.M.

:

9

:

10

FACEBOOK, INC., a Delaware

:

11

Corporation,

:

12

:

13
14

Defendant,

:

.............................

15
16
17

TRANSCRIPT OF SCHEDULING CONFERENCE

18

BEFORE THE HONORABLE JOSEPH J. FARNAN, JR.

19

UNITED STATES DISTRICT JUDGE

20
21
22

APPEARANCES:

23
24
25

For the Plaintiff:

POTTER, ANDERSON & CORROON, LLP
BY:

PHILIP A. ROVNER, ESQ

2

1

-and-

2

KING & SPALDING, LLP

3

BY:

PAUL ANDRE, ESQ

4
5

For the Defendant:

6

BLANK ROME, LLP
BY: THOMAS PRESTON, ESQ

7

-and-

8

COOLEY, GODWARD, KRONISH, LLP

9

BY:

HEIDI L. KEEFE, ESQ

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Court Reporter:

LEONARD A. DIBBS
Official Court Reporter

3

1
2

P R O C E E D I N G S

3

(At this time, court proceedings commenced.)

4

THE COURT:

Be seated, please.

5

MR. ROVNER:

Good afternoon.

6

THE COURT:

7

I wanted to get you in because we have this trial

8

All right.

scheduled and we have a pretrial tomorrow.

9

This case will go to trial on its scheduled date.

The

10

question is, who's going to preside at the trial?

11

is going to be ultimately assigned to Judge Stark because he's

12

absorbing my caseload.

13

that now.

14

And this case

We're in the process of transitioning to

What the court decided was that, you know, we have four

15

job spots on the wheel.

So, we now have a quote-unquote vacant

16

judge spot on the wheel.

And those cases that go into that are

17

assigned to judges that are assisting from other districts.

18

what the court is going to do is maintain that slot so as new

19

cases come in, 25 percent of them will go to that slot until my

20

vacancy is filled.

21

So,

Judge Stark for purposes of consistency is going to

22

simply absorb my entire caseload when he's confirmed by the

23

senate.

24
25

You may have noticed that I've been referring to Judge
Stark that are newly assigned to me because he's going to get

4

1

them anyway.

2

you know, create another vacant judgeship slot for my cases.

3

We thought that was a more cogent way rather than,

You're going to get to know Judge Stark real well.

4

you may know his progress is that he was voted out of the

5

As

judiciary committee.

6

He's now on a calendar in the United States senate with

7

the endorsement of both the chairman of the judiciary committee.

8

Senator Leahy.

9

Sessions.

He is only waiting how those calendars work for some

10

movement.

He's what they consider non-controversial.

11
12

Unusual, he has an endorsement from Senator

I suspect he will be confirmed certainly no later than
they go on recess in August.

13

But the way the world works, if something happens with

14

those calendars he could come out within a week.

15

through the judiciary committee and he's on a calendar.

16

He's all

I say all this because you could consent to Judge Stark

17

who is going to be your Article III judge anyway post-trial or

18

you could go to a visiting judge for the trial.

19

visiting judge -- not a judge outside the district, but an

20

Article III judge in this district.

I shouldn't say

21

But even if that was the case it would come back to

22

Judge Stark post-trial, or depending on my actual retirement

23

date.

24

not going to leave that day.

25

July.

My birth date is June l5th.

I can leave that day.

I'm

I'm going to leave sometime in

5

1

I left my date open because I was hoping there would

2

be -- naive as I am, I was thinking actually Judge Stark and

3

somebody replacing me.

4

until early 2011.

5

avoid as much as -- to avoid disruption as much as possible.

6

My replacement probably is not coming

It doesn't matter when I go.

I was trying to

To do that, I would have to stay around a lot longer

7

than I anticipated back when I gave everybody notice at the end

8

of the year.

9

think that would be unfair to you.

10

So, I'm not asking for a decision today because I

I thought we would postpone the pretrial until you get

11

a decision from your clients and all.

I would say in the first

12

instance is to consent to Judge Stark.

If you choose not to do

13

that, you would let me know and then we would decide among the

14

Article III judges what's going to happen focused on the trial

15

date that we have in June here.

16
17
18

Do you have any questions?

I tried to give it to you

in short form.
Are there any questions that you would want to put to

19

me or to Judge Stark or the other judges?

I mean, this could

20

wind up if you don't consent to Judge Stark -- we're having a

21

judges' meeting tomorrow morning that it could come back to me.

22

It would have to be an awful lot given in exchange.

23

MS. KEEFE:

By the other judges, not by us?

24

THE COURT:

Exactly.

25

What I'm trying to do is exit with a clean motion list.

By the other judges.

6

1

The motion list is due in September.

2

hard so Judge Stark has nothing that's over six months

3

delinquent.

4

We've been working real

That's where everybody agrees I should put my time.

Actually, I've been handling criminal cases about 30

5

days longer than we were suppose to when we sat down in June

6

when I gave my notice.

7

90 days getting all the motions out.

8
9
10

It's amazing the letters I get.

Judge, before you go

would you do our motion for Summary Judgment one way or the
other.

We are trying to do that for the parties.

11
12

The idea was that I would spend the last

Nothing goes exactly the way you plan with the
vacancies.

13

If you have any questions, I'm happy to answer them.

MR. ANDRE:

One question.

When will we know if you

14

could handle the trial and pass off post-trial motion to Judge

15

Stark?

16

morning?

17
18
19

Will we know that after the judges meeting tomorrow

THE COURT:

I don't think so.

You probably wouldn't

know that until later next week.
MR. ANDRE:

The way it's scheduled, if we keep with the

20

current trial schedule -- last day -- we would be finish by no

21

latter than July 9th.

22

hanging around on the bench after that time period and handing

23

it off to Judge Stark.

24
25

THE COURT:

I don't know if you would still be

After a discussion with the Article III

judges it came to me, if I presided at the trial, that's about

7

1

all I would do, then I would leave.

2

I suspect given the closest then we have to Judge

3

Stark's appointment, the motions -- let me say this:

4

be deciding the motions because I'm not staying past the last

5

week of July.

6

would be sometime between the end of the trial and say July

7

27th.

8

going to be a government employee when that party starts at 5:00

9

o'clock, whatever it is on that Friday.

10
11

I wouldn't

I don't know -- I don't know the exact date.

I have a retirement party planned for July 30th.

It

I'm not

I would like to get out at least the week before that
party, get out of government service.

12

MR. ANDRE:

What I'm asking is if we do consent to have

13

Judge Stark handle the post-trial motions, even though he's not

14

confirmed at that point and try to keep you as the presiding

15

judge.

16

I do think this is going to be a complex trial.

I

17

would like to have someone who's had the kind of experience that

18

you've had in patent cases over the years.

19

THE COURT:

Are you asking me that question?

20

MR. ANDRE:

Is there any chance that we could consent

21

for Judge Stark to take over the post-trial even before he's

22

confirmed?

23

THE COURT:

I don't think you can do that.

24

understand the rule -- I see what you're saying now.

25

think so you can do that.

As I
I don't

You have to consent prior to the

8

1

trial.

Post-trial motions to be handled by the judge.

2

drop dead, there is a substitution rule, but then it would have

3

to be an Article III judge.

4
5

MR. ROVNER:

THE COURT:

10

I'm going to take it off just to give you a

chance to decide.

8
9

My first question is, is tomorrow off

calendar?

6
7

If I

MS. KEEFE:

Perfect.

I have to talk to my client

THE COURT:

Let me say this:

anyway.
I'm not going to look for

11

an answer until the early part of next week.

So you can have a

12

chance to have a good discussion with your clients.

13

MS. KEEFE:

14

Actually, they told me before I walked in here today,

15

The client would be very grateful for that.

we would like to talk about whatever he wants to talk about.

16

The second question is, if we were to consent to Judge

17

Stark now, would all of the pending motions -- we have a number

18

of Summary Judgement motions pending, a Motion for Leave to

19

Amend pending.

20

would go to Judge Stark?

Would they all go to Judge Stark, the whole case

21

THE COURT:

22

The reason why I'm offering this to you with Judge

23
24
25

Yes.

Stark is only about consistency.
If you start so chopping it up, I know you're going to
have a hard time believing this, but judges see things

9

1

differently sometimes.

2

It happens here in the courts.

3

is going to do the trial -- who was going to do the trial would

4

do all work.

5

Hard to believe given the rule of law.
The idea was that with whoever

As I think about the question of consenting to Judge

6

Stark post-trial, what would probably happen is the trial would

7

end, there would be filings.

8

will be an Article III judge by the time you're done briefing.

9

So, consent really probably isn't an issue.

10

I would fully anticipate that he

won't be working on post-trial motions.

11

Let me say this:

I clearly

This is a nightmare.

Too many -- I'm open to any ideas

12

that you have to make it -- if you can agree to something that

13

works for you.

14

I'm just coming with the routine kind of proposal.

15

there is something else that you can think of, I'll listen to

16

If

it.

17

MR. ANDRE:

All things being equal, we would obviously

18

love to have your Honor at trial.

19

however they are assigned, whether Judge Stark be confirmed or

20

whatever.

21
22
23

Post-trial briefs handled,

That would be our preference.
MS. KEEFE:

Unfortunately, your Honor, I can tell you

right now, that's nothing that we would be happy with.
We want to make sure that we have the same judge at the

24

trial who does post-trial hearings, if possible.

25

to talk with each other.

Maybe we have

10

1

THE COURT:

You have to convince them.

I can only do

2

it -- Judge Stark can only do it if both sides consent.

3

side -- I don't want to enter into those discussions.

4

party doesn't consent then we can't do it.

5

it internally.

6

If one
If one

We'll have to take

I've given you some of the options.

MS. KEEFE:

There is no guarantee, your Honor, that you

7

would be the one trying the case?

8

decide whether you're going to take the case on the 28th?

9

THE COURT:

The judges still have to

We would have to see what everybody is

10

doing.

11

think the first decision for both you is, do you consent to

12

Judge Stark or not consent to Judge Stark?

13

We would have a discussion internally.

That's why I

Once we have that, and I know if it's yes, then he'll

14

take on the case from now through the end.

15

to Judge Stark then, I'll take that decision internally and then

16

I'll tell you who your judge is going to be for the trial.

17

Let's say it's me.

If you don't consent

You know, I'm not going to be the

18

post-trial judge.

If it's not me, there will be another judge

19

stepping in.

20

doing criminal work another 30 days to help them out.

21

know how that discussion is going to go.

There will be some internal exchange.

22

MS. KEEFE:

23

I might be
I don't

decision of you versus Stark?

24
25

Just to be clear, this is not a binary

This is a binary decision of Stark versus another
Article III judge?

11

1

THE COURT:

Possibly.

2

MS. KEEFE:

It might be you?

It might be Judge Sleet?

3

It might be Judge Robinson, or someone from the visiting

4

benches?

5
6
7
8

THE COURT:

Right.

But if it's me, you will definitely

get a different post-trial judge.
MS. KEEFE:

Either Stark or anyone of those same people

depending on what happens?

9

THE COURT:

I think you got the problem now.

10

MS. KEEFE:

Thank you, your Honor.

11

MR. ROVNER:

In that situation, we would be no

12

different than the case you're trying today?

13

the jury trial and someone else would be doing the post-trial

14

motions, I suppose?

15

THE COURT:

16
17

You would be doing

I'm not so sure about that.

I don't want

to make announcements.
This is Roper and Farabow.

They understand that in

18

this case they spent their careers on these co-polymers,

19

particularly Roper.

20

where they want to be?

21
22
23

When they get a jury verdict, do you know
They want to be in the Federal Circuit.

We've talked a little bit but not enough that I can say
something to you.
This might be a different situation.

The reason I put

24

this case on because I had them in February and they had a long

25

discussion.

Actually, this is all public, as far as client Nova

12

1

really thinks their winner is standing.

And the other side has

2

a different view on the merits of the case.

3

So this is a different kind of case.

4

What I did was I told them I would actually get them in

5
6

and out before I leave.
MR. ROVNER:

This is different.

In any event, regardless of who tries the

7

case, we would still be going to trial on June 28th?

8

certain of that?

9

THE COURT:

We can be

Right around June 28th.

10

We're going to give up a little time here.

11

Yes, you're definitely going to trial on June 28th,

12

29th, July 1st.

You're going to trial within that timeframe.

13

MR. ROVNER:

14

THE COURT:

15

MR. ROVNER:

16

THE COURT:

17

MR. ROVNER:

Okay.

Thank you.

I don't have my calendar here.
June 28th is a Monday.
You might like go the 29th or 30th.
We're just thinking because some of our

18

experts, we would have to rearrange their schedules.

19

than happen to do that.

20

THE COURT:

21

anniversary.

22

else that day.

We're more

When you said that, June 28th is my wedding

I won't be here that day.

I have to be somewhere

It might Tuesday, the 29th or Wednesday.

23

MR. ROVNER:

Okay.

Thank you.

24

THE COURT:

25

Again, I apologize to you.

Okay.
I know this is tough to

13

1

explain to clients.

2

I just don't know what else to do though.

I think everybody sitting around thought Judge Stark

3

would be here by now and my replacement would be selected.

4

I told the selectors that I was leaving.

5

back in November.

6

January, waiting a couple of weeks until they told me it was

7

okay to send my later.

8

right away, but they didn't start it until April.

9
10

I held up until

They were starting the selection process

I understand the open period keeps getting extended to
get the names, even in Delaware, selected.

11
12

They asked me to hold up.

I told them

I apologize.

It's hard to explain to clients.

I know.

They just think all judges are the same.

13

Why don't you just get moving and get the case going.

14

I apologize to you.

What I need to know from you is maybe like

15

Monday whether there's a consent to Judge Stark.

16

there is not, then I would take it internally and I'll get you

17

an answer by, let's say, the first, so that you have it before

18

the weekend who your trial judge is going to be.

If you tell me

19

Like I said, it could be me or one of the others.

20

If it's me, we'll reschedule the pretrial.

21

someone else, they will reschedule.

22

If it's

You're all in the mode to get this thing moving.

23

I'll try and do it quickly.

Probably early the following week we would have the

24

pretrial, if it's me so we're ready for the end of the month.

25

Okay?

14

1

Thank you.

2

MS. KEEFE:

3

MR. ROVNER:

4

(At this time, court proceedings concluded.)

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Thank you, your Honor.
Thank you, your Honor.