“Any request for an extension of time . . . will be looked upon with disfavor.”
U.S. District Court for the Eastern District of Virginia Local Rule 7(I)
Have you or has your company just been sued or threatened with a lawsuit in the Eastern District of Virginia Rocket Docket? Regardless of what you have heard, it is true that the United States District Court for the Eastern District of Virginia is a unique and special forum. Attorneys who regularly appear in courts throughout the United States appreciate that local practice and custom diverge from one court to the next, despite the overarching constraints of the Federal Rules of Civil Procedure. The EDVA Rocket Docket is exceptional not only because of its speed in adjudicating cases, and it is fast, but also because of its tradition of excellence that makes no concessions in its demand for high- caliber advocacy in the face of a rapid-pace litigation environment.
It is widely written and recounted that the EDVA speed gives special advantage to plaintiffs who enjoy some element of surprise and superior advance preparation before launching their cases in the Rocket Docket. But guided by experienced counsel, there are innumerable examples of resourceful defendants who, in a matter of a few short months, have rendered their competitor’s patents invalid, obtained enviable damages awards through effective counterclaims, or otherwise successfully removed the cloud of litigation over their businesses.
History, Notoriety, & Speed of the EDVA Rocket Docket
The United States Court for the Eastern District of Virginia has a long and illustrious history. As one of the original thirteen United States, the Commonwealth of Virginia has been home to the United States Court for the “District of Virginia” since that court was originally established by the Judiciary Act of 1789, signed into law by George Washington. Thirty years later, in 1819, Congress subdivided the court into two judicial districts—the Western District of Virginia (“WDVA”) and the Eastern District of Virginia (“EDVA”). Although the boundaries have shifted over time, most notably after West Virginia became its own state, the EDVA today has jurisdiction over Virginia’s most populous regions, including the suburbs of Washington, DC in Northern Virginia, Hampton Roads, and Richmond, the state’s capitol. The EDVA has courthouses in four locations: (1) Alexandria, (2) Norfolk, (3) Richmond, and (4) Newport News.
The EDVA often enters the public spotlight due to the cases that it handles, such as the corruption trial of former Virginia Governor Bob McDonnell, espionage indictments brought against Aldrich Ames, Robert Hanssen, and Harold Nicholson as well as the terrorism cases against Ahmed Omar Abu Ali, Zacarias Moussaoui, and the five Somali pirates. However, the court is most widely known, at least within legal circles, as the “Rocket Docket,” a moniker for the rapid speed at which the court adjudicates and disposes of cases on its docket. There are other “rocket dockets,” such as the U.S. District Court for the Western District of Wisconsin, but the EDVA has enjoyed that title for the longest time—consistently, year after year holding average-time-to-trial statistics somewhere between six to eight months from the initial scheduling conference. Not surprisingly, therefore, the court has adopted the motto, “Justice delayed is justice denied.”
Judicial speed and efficiency are matters of tradition at the EDVA that likely dates back to the 1950s during the tenure of Judge Walter E. Hoffman who was known to hold court on weekends and holidays, rule from the bench upon conclusion of argument, and counsel lawyers that in his court, “continuance” was an obscene word. See United States v. Ferguson, 432 F. Supp.2d 559, 569 n.10 (E.D. VA 2006) (citing The “Rocket Docket” Judge Bans Continuances, Lawyers Monthly, May 1989). Although the speed of the court’s adjudication is what often grabs headlines, it is precisely this entrenched judicial aversion to continuances that most radically shapes the experience of counsel and the parties who appear before the court. Regardless of the complexity and surprise attendant to any litigation, the trial date and the succession of procedural deadlines preceding it, stand fixed and immutable—so much so that experienced counsel know better even than to ask for more time.
Surviving & Thriving in EDVA Litigation
As a consequence of unforgiving schedules, litigating before the EDVA demands a type of discipline, attention to detail, and organization that is foreign to many practitioners and more akin to project management taught in business schools and logistics training offered in military academies. Not only does the case schedule advance rapidly, but also major aspects of fact discovery, expert discovery, dispositive motions, and even trial preparation necessarily move forward in parallel. Even the best case can be crippled by procedural missteps that result in substantive waivers.
It is often surmised that the EDVA’s rapid adjudication of cases ultimately conserves party resources, but the notion that the rocket docket saves litigation expense is likely misplaced. Whether the parties are entangled in antitrust, contract, regulatory, RICO, securities, fraud, tortious interference, banking, or intellectual property matters such as patent, trademark, trade secret, or copyright cases, there is a certain amount of substantive work that needs to be done to effectively prosecute claims or assert defenses. The rocket docket certainly does save time but whether the hard work of trial preparation is adequately accomplished depends heavily upon both the skill of counsel and the commitment of their clients. The question of whether the rocket docket fairly achieves the ends of justice is equally elusive, prompting the pragmatic response from Judge Ellis that “I cannot give you answer, but there are plenty of consumers of the ‘rocket docket,’ so you should ask them.” Judge T.S. Ellis, III, Quicker and Less Expensive Patent Enforcement in the U.S., CASRIP Publication Series: Streamlining Int’l Intellectual Property N. 5 at 21.
For all these reasons, premium value is placed upon staying on schedule and on track in implementing litigation strategy before the EDVA. Invariably, obtaining successful results before the EDVA requires division of labor with clear assignments and effective leadership that inspires the most from the collaborative work among counsel, clients, experts, and vendors. Moreover, unavailability of counsel is not a justification for continuance in an environment where the court does not countenance delay.
Recognizing that many of its matters are handled by out-of-town counsel, the EDVA local rules require competent local counsel “who shall have such authority that the Court can deal with the attorney alone in all matters connected with the case.” EDVA Local Rule 83.1(D)(3). Because local counsel may be called upon to act when foreign counsel is unavailable, utmost care should be given to the selection of local counsel who has the expertise and firm resources available to make meaningful and necessary contributions to the case.
Typical EDVA Case Schedule
EDVA Local Rule 16(B) establishes four significant scheduling events along the short rode to trial before the United States District Court for the Eastern District of Virginia. Those four events, discussed in turn below, include (1) the Local Rule 16(B) Order, (2) preparation and submission of the Parties’ Discovery Plan, (3) the Initial Pretrial Conference/Order, and (4) the Final Pretrial Conference.
1. The Local Rule 16(B) Order
EDVA Local Rule 16(B) requires that “not later than ninety (90) days from first appearance or one hundred and twenty (120) days after service of the complaint,” the court shall enter an order setting dates for the following:
(a) the Initial Pretrial Conference (usually within 30 days of the Local Rule 16(B) Order and also requiring submission of the Parties’ Discovery Plan),
(b) completion of discovery (usually 90-120 days from the date of the Local Rule 16(B) Order),
(c) the Final Pretrial Conference (ordinarily one week after completion of discovery), and
(d) “wherever practicable, the trial date” (usually, no trial date is set in the Order).
Especially in the Alexandria Division of the EDVA, the Local Rule 16(B) Order acts as the starting gun for fact discovery. Ordinarily, the Local Rule 16(B) Order states, “Discovery may begin as of receipt of this Order.” Due to the shortness of the discovery period, experienced counsel typically serve interrogatories, document requests, and other written discovery on the day that the Local Rule 16(B) Order issues.
As can be seen, this practice lays out a daunting schedule. Parties will have a minimum of 90 days to complete discovery, and then, after completing discovery, they will have a minimum of four (4) weeks to prepare for trial.
The first few weeks or months following the filing of the complaint deceptively appear to be a quiescent time in the life of a case pending before the EDVA. However, that often is not so because that time is consumed with briefing of dismissal or transfer motions. And, that should not be so because as experienced counsel knows, that time in the case is very precious and must be put to good use.
It is a time to study the issues and develop strategies and themes that will guide the litigation team through discovery and into trial. Unlike other jurisdictions where litigation progresses in phases, trial preparation in the EDVA begins upon the filing of the complaint, and every effort expended should add something of value to trial preparation.
It is a time to prepare for discovery. On the defensive side, it is a time to collect and review client documents that will almost certainly be requested by the opponent and interview and prepare potential deposition and trial witnesses. On the offensive side, it is a time to prepare written discovery to serve on the opponent, identify party and non-party deposition witnesses, and prepare to take the depositions.
It is a time to retain experts and have them begin developing their opinions and drafting their reports, which can be refined during discovery.
It is a time to begin identifying trial exhibits and creating trial exhibit lists, which can be tailored and adjusted during discovery.
In patent cases, it is a time to develop claim construction positions and prepare for claim construction briefing and the Markman hearing.
Above all, it is a time to assemble the litigation team while involving the client to leverage the client’s institutional knowledge and to avoid misunderstandings and strategy miscues. It is also a time to not only develop a plan that realistically addresses all of the projects that will need to be completed, but also to clearly assign responsibility for those projects to team members and to decide when each task needs to be initiated and completed.
2. The Parties’ Discovery Plan
The Parties’ Discovery Plan, also referred to as the parties’ Rule 26(f) report, is filed as a joint submission, indicating where, if at all, the parties differ on their proposals. The Parties’ Discovery Plan proposes a schedule for the exchange of disclosures under Federal Rule of Civil Procedure 26(a)(1), exchange of expert discovery, the format in which documents will be exchanged, and other pretrial matters depending on the nature of the action. The discovery plan must fit within the framework and dates established in the Local Rule 16(B) Order.
The parties also report on the status of settlement discussions, if any, and disclose whether they consent to trial before a magistrate judge.
3. The Initial Pretrial Conference/Order
The Initial Pretrial Conference, if necessary, is held one week after the parties submit their discovery plan. If the parties do not indicate any disagreement in their joint discovery plan, the court will often take the Initial Pretrial Conference off calendar and issue an Order, frequently called a “Rule 16(b) Scheduling Order” that adopts the parties’ plan. Otherwise, the court will conduct the conference to hear argument on each side’s scheduling proposals.
Shortly after the conference, the court enters its Rule 16(b) Scheduling Order and adopts, where agreeable, the deadlines in the Parties’ Discovery Plan, establishes new deadlines where necessary, and lays out other ground rules governing the parties’ pretrial conduct.
4. The Final Pretrial Conference
The Final Pretrial Conference is often scheduled about one week after completion of discovery. The main event of the Final Pretrial Conference is setting the trial date, which is usually sometime between 4 to 8 weeks from the Final Pretrial Conference.
Despite having just completed discovery, the parties are required to complete a host of other trial-related tasks on or before the Final Pretrial Conference, including submission of trial exhibit lists, trial witness lists, and stipulations of uncontested facts. The parties are required to exchange trial exhibits before the Final Pretrial Conference, and objections to exhibits are due ten (10) days after the conference.
Local Practice - Pitfalls, Missteps, & Warnings
The United States District Court for the Eastern District of Virginia has enacted local rules that, in some instances, modify the Federal Rules of Civil Procedure and, in other instances, significantly add to those rules. EDVA Local Rule 83.1(D) requires out-of-state counsel to certify that they have read the local rules, which is a necessary but not sufficient orientation to practicing before the EDVA. Some of the more common pitfalls and missteps as well as idiosyncrasies of practice before the EDVA are discussed below:
Filing the Complaint
While other submissions may be filed electronically, the complaint must be filed in the clerk’s office. Similar to other jurisdictions, the complaint must be filed with a completed JS44 Civil Cover Sheet together with the filing fee from the published Clerk’s Office Fee Schedule.
Financial Interest Disclosure Statement
EDVA Local Rule requires ALL PARTIES who are “non-governmental corporations, partnerships, trusts, or other similar entity” to file a Financial Interest Disclosure Statement, describing the ownership and structure of the party. The primary purpose of the disclosure is to enable the judges to determine if they have a potential conflict in presiding over the matter due to a financial interest in the party.
Supporting Brief Requirement. All motions must be supported by a brief that states the factual and legal bases for the relief sought. EDVA Local Rule 7(F).
Noticing a Motion for Hearing. It is not enough to merely file moving papers. EDVA Local Rule 7(E) requires the moving party “to set the motion for hearing or arrange with opposing counsel for submission of the motion without oral argument.” The penalty for not following through on this requirement is severe. “Unless otherwise ordered, a motion shall be deemed withdrawn if the movant does not set it for hearing (or arrange to submit it without a hearing) within thirty (30) days after the date on which the motion is filed.” Id.
Meet and Confer. Before setting a motion for hearing, counsel for the moving party has an obligation to meet and confer with opposing counsel “in a good- faith effort to narrow the area of disagreement.” EDVA Local Rule 7(E). A statement certifying that counsel have met and conferred is required in all motions. EDVA Local Rule 37.
Briefing Schedule. This is an example of how procedure in the EDVA can diverge even from the local rules as a matter of practice under a case scheduling order.
Local Rules. The local rules establish the default briefing schedule for motions practice. Opposition briefs are due eleven (14) days after service by the moving party. The moving party then has three (6) days to file and serve a reply brief. EDVA Local Rule 7(F)(1).
One-Week Accelerated Briefing/Hearing Schedule - Rule 16(b) Scheduling Orders. The default briefing schedule for non-dispositive motions before the magistrate judge is often modified in the Rule 16(b) Scheduling Order. Fridays at the EDVA are typically reserved for hearings on motions, and scheduling orders are crafted to get parties quickly before the court to resolve disputes. Under a typical scheduling order, if a moving party files and serves a non-dispositive motion no later than 5:00 pm on a Friday and the motion is noticed for hearing at 10:00 am on the following Friday, then the opposition to the motion is due no later than 5:00 pm on the following Wednesday before the hearing. Any reply to the opposition is due as soon as possible on Thursday to give the court enough time to consider it before the hearing the next day. Often the court will rule from the bench, initiating the default eleven (11) day compliance deadline under EDVA Local Rule 37(C). Note: hand service by 5:00 pm on a Friday under Fed. R. Civ. P. 5 is required to activate this one-week briefing/hearing schedule. Otherwise, Fed. R. Civ. P. 6 adds three days to the date of service causing the filing to miss the 5:00 pm Friday filing deadline. This problem is often avoided by language in the scheduling order that equates hand service with the court’s electronic ECF filing and service.
Agreement among Counsel regarding Extensions of Time. EDVA Local Rule 7(G) plainly states, “Motions for continuances of a trial or hearing date shall not be granted by the mere agreement of counsel” and “No continuance will be granted other than for good cause and upon such terms as the Court may impose.”
Page Limitations. Opening and opposition briefs may not exceed thirty (30) pages. A rebuttal brief is limited to twenty (20) pages. A “page” is a typewritten 8-1/2 inch x 11 inch page, double spaced, where all writing, including footnotes, is in 12 point Roman style or 10 pitch Courier style font and one-inch margins. EDVA Local Rule 7(F)(3).
Sanctions for Unwarranted Motions Practice. The EDVA judges expect counsel to cooperate in narrowing disputes and to avoid engaging in unwarranted, tactical motions practice. Consequently, it is not uncommon for sanctions to be imposed under EDVA Local Rule 37(G), which provides, “The presentation to the Court of unnecessary discovery motions, the presentation to another party or non-party of unnecessary discovery requests of any kind, as well as any unwarranted opposition to proper discovery proceedings, will subject such party to appropriate remedies and sanctions, including the imposition of costs and counsel fees.”
Summary Judgment Motions
No Set Time for Summary Judgment Briefing. EDVA Local Rule 56(A) does not specify a particular timeframe or deadline for briefing summary judgment motions, except to advise that “[n]o motion for summary judgment shall be considered unless it is filed and set for hearing or submitted on briefs within a reasonable time before the date of trial, thus permitting a reasonable time for the Court to hear arguments and consider the merits. . . .” The judges have historically been receptive to motions for summary judgment and inclined to enter summary judgment when it appears there are no genuine, material facts in dispute.
Listing of Undisputed Facts and Number of Motions. EDVA Local Rule 56(B) requires the statement of undisputed facts to be included in the brief in support of the motion for summary judgment as “a specifically captioned section.” Likewise, the brief in opposition must contain “a specifically captioned section” identifying the facts that are contended to be in dispute. As a point of caution, particular care must be accorded to the statement of facts in an opposition brief because the local rule permits the court to “assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.” EDVA Local Rule 56(C) requires leave of court to file more than one motion for summary judgment. Ordinarily, all separate grounds for summary judgment must be included in a single motion.
15-Day Objection Deadline. Perhaps the most peculiar and surprising rule to out-of-state counsel is the requirement under EDVA Local Rule 26(C) to serve objections “to any interrogatory, request, or application under Fed. R. Civ. P. 26 through 37” within fifteen (15) days after receiving service. This rule does not otherwise alter the deadlines under the federal rules for substantive responses to discovery. For example, after receiving interrogatories from the opponent, a party has fifteen (15) days to serve its written objections to the interrogatories but the party’s substantive answers to the interrogatories are not due until thirty (30) days after receipt of service as provided under the federal rules. The purpose of the accelerated objection rule is to assist the parties and the court in quickly identifying and resolving discovery disputes as they arise. Failure to comply with the rule may result in waiver of the objections.
Compliance with Discovery Orders. The default deadline under the local rules for complying with any discovery order (answering interrogatories, responding to admission requests, document production, inspections, etc.) is a very short eleven (11) days. EDVA Local Rule 37(C).
Certain Party Deponents Must Appear in the District. Under EDVA Local Rule 30(A), any “party” who properly files a civil action in one of the divisions of the EDVA can be compelled to appear in that division for deposition. The rule specifies that “party” includes an “officer, director, or managing agent” of a party and, in practice, a “party” deposition includes a Rule 30(b)(6) witness appearing on behalf of the party. EDVA Local Rule 30(A) further defines a party subject to deposition in the division as “[a] defendant, who becomes a counterclaimant, cross-claimant, or third-party plaintiff.”
“Reasonable Notice” of a Deposition. Under EDVA Local Rule 30(H), eleven (11) days advance notice of deposition is presumptively reasonable notice for taking a deposition within the continental United States.
Limitation on Non-Party Depositions. A growing practice in the EDVA is the inclusion of a limitation on the number of non-party, non-expert depositions in the case scheduling order. Typically, only five (5) such depositions are permitted without leave of court.
Increased Number of Interrogatories. In setting the scheduling order, the court is often amenable to party requests to expand the number of interrogatories permitted to each party under the Federal Rules of Civil Procedure.
EDVA Dockets, Jurisdiction, & Venue
The United States Court for the Eastern District of Virginia sits in four locations: (1) Alexandria, (2) Richmond, (3) Norfolk, and (4) Newport News. Each EDVA location is a separate “division” of the court with unique geographical boundaries. When personal jurisdiction and venue are proper in the EDVA generally, EDVA Local Rule 3(C) designates the EDVA “division” in which a civil action may be filed: “For the purpose of determining the proper division in which to lay venue, the venue rules stated in 28 U.S.C. § 1391 et seq. shall be construed as if the terms ‘judicial district’ and ‘district’ were replaced with the term ‘division.’” As a result, the selection of the proper EDVA division typically turns on the residency of the defendants or the location of where substantial aspects of the transactions and occurrences of the cause of action took place.
One important exception has arisen as a matter of practice regarding patent infringement lawsuits filed in the EDVA. The venue rules apply equally to the filing of patent actions, however, the court may administratively assign the patent case to another division depending upon the case load of individual judges. For example, a patent action properly filed in the Alexandria Division, may be assigned to a judge in the Richmond Division.
Finally, the judges assigned to the Norfolk Division use both the courthouse in Norfolk and the courthouse in Newport News.
The Four Divisions of the EDVA
EDVA Local Rule 3(B) designates the geographical boundaries of the four divisions of the Eastern District of Virginia.
The boundaries are set generally by identifying the counties within each division. The rule also specifically names certain cities within each division, while noting that “any other city or town geographically within the exterior boundaries” of the counties likewise fall within the designated division.
District Court & Magistrate Judges
Another unique aspect of the EDVA is its use of a “master docket” which means that the EDVA judges do not typically manage their own caseloads. When a substantive motion is up for consideration or a trial is scheduled to start, the matter will be handled by a judge who is available. This master docket system dates back to the 1950s and owes its beginning to Judge Albert Bryan. The master docket is a key feature of EDVA practice and is probably the reason that the court can successfully set fixed and immutable case deadlines. See generally, Judge Ellis, T.S. Ellis, III, Quicker and Less Expensive Patent Enforcement in the U.S., CASRIP Publication Series: Streamlining Int’l Intellectual Property N. 5 at 4-5.
Once again, patent cases represent an exception. Patent cases are not carried on the master docket but are, instead, assigned to individual judges throughout the life of each case. Specific assignments have also been made in the past in other types of cases depending upon their complexity.
Magistrate Judges play a significant role in the EDVA. In almost every case, magistrate judges preside over all discovery matters and play active roles during settlement conferences. Most discovery matters are handled by the magistrate judges as they arise on the master docket. However, patent matters are typically assigned to a single magistrate judge.
Patent Litigation in the EDVA
The United States Court for the Eastern District of Virginia does not have specialized local rules governing the pretrial procedure and conduct of patent litigation. Although proposals for local patent rules have been made in the past, none have been adopted.
Nevertheless, some of the same procedures adopted in the local patent rules of such jurisdictions as the United States District Court for the Northern District of California and the United States District Court of New Jersey are utilized as a matter of practice in many of the patent suits litigated in the EDVA. The procedures find their way into EDVA cases either by way of proposal by the parties in their discovery plans or by preference of individual judges.
Those procedures include:
1. Exchange of disputed patent claim terms and proposed constructions of disputed patent terms to narrow the scope of claim construction briefing and issues to be addressed during Markman hearings.
2. The exchange of patent infringement and non-infringement contentions, usually in the form of “claim charts” that address the parties’ contentions regarding the accused products or accused processes on a claim-term-by-claim- term basis.
3. The exchange of patent invalidity or validity contentions, again in the form of “claim charts” that address the parties’ contentions regarding the novelty of the claimed inventions and the degree to which the claimed inventions were known in the prior art.
The patent-related pre-trial procedures are not implemented in a uniform manner but instead are most often either set out expressly in the court’s Rule 16(b) Scheduling Order or included in the Order by way of reference to the parties’ discovery plan.