First published in Managing Intellectual Property

Originally published in the Annual Litigation Supplement of Managing Intellectual Property

Welcome to the Rocket Docket

Just across the Potomac river, within eyesight of downtown Washington, D.C., sits historic Olde Town Alexandria, Virginia, home of quaint antique shops, cobble-stoned streets, untold George Washington Slept Here signs, and . . . the Rocket Docket. Though not one of the many tourist attractions gracing this old American city, the Rocket Docket should attract the attention of any multinational corporation. For the day just might come when International Widgets, a Luxembourg corporation doing business throughout the globe, finds itself bringing or defending a lawsuit in the United States District Court for the Eastern District of Virginia.

This court is one of the 94 federal district courts in the United States, the courts responsible for hearing all patent infringement cases and a broad array of other cases. Because of this particular court's unique system of case management, it has earned the reputation as the fastest and most efficient federal court in the United States. Hence its nickname, the Rocket Docket. Civil cases filed there do not languish. Instead they often proceed with breakneck speed, challenging the wits and skill of even the most seasoned of trial lawyers.

According to the philosophy of the Rocket Docket, the single greatest motivator for parties to settle their differences is the prospect of an early, fixed trial date. The court manages its criminal and civil dockets in such a way that criminal cases will not "bump" civil trial dates off the calendar. Thus, when a trial date is set, you can consider it etched in stone. On average, a case filed in the Rocket Docket reaches trial within six to seven months, regardless of its size and complexity (e.g., the number of patents asserted) or the number of parties involved.

Advantage to the Plaintiff

A plaintiff has the luxury of knowing its litigation plans. It knows what documents it will have to discover, the witnesses it needs, the experts it will employ. Its attorneys have thoroughly researched the legal issues involved and prepared reams of legal memoranda and drafts of briefs to use in the pretrial and trial phases of the case. When it files the suit in the Eastern District of Virginia, the plaintiff is ready to ride the Rocket Docket.

But the defendant is caught unaware, because the federal courts do not require any prefiling notice. When sued in the Eastern District, the defendant often must make a mad dash just to keep up with the fevered pace that litigation in this federal court invariably entails. As a result, detailed analysis of complex issues of patent infringement or invalidity, especially in cases involving non-U.S. prosecutions, becomes nearly impossible.

The Key: Docket Control

Rules 16 and 26 of the Federal Rules of Civil Procedure authorize federal district judges to control their dockets. The control extends to all matters: motions, discovery, the trial, and scheduling.

In the Alexandria division of the Eastern District, that control begins when the case is filed and entered on the court's master docket. The clerk's office reviews the docket each month, making sure that all parties have filed responsive pleadings. When they do not, the case is abated. When they do, the Chief Judge enters a scheduling order, setting dates for discovery completion and final pretrial conferences; requiring motions to be filed before the final pretrial conference; and advising counsel about their duties during discovery, the final pretrial conference, and the trial. The order typically sets the final pretrial conference at two or three months after filing and ends discovery on the Friday before that conference. The order also alerts counsel that the trial date will be set at the final pretrial conference, usually occurring three to eight weeks after the conference.

All attorneys in a case must meet before the final pretrial conference. They must stipulate uncontested facts. Then, at the conference, presided over by the Chief Judge, they must bring (1) their witness lists, (2) exhibit lists, (3) exhibits ready for filing, and (4) a written stipulation of uncontested facts.

The Rocket Docket exerts significant control through local rules governing motions and discovery. Under Local Rule 11, all motions must appear in writing. No "form motions" are allowed. Instead, motions must relate directly to the case, and the attorneys filing the motions must personally review them and certify that they are indeed pertinent to the case. Many motions must be accompanied by written briefs. Local Rule 11 requires that an attorney seeking a hearing on a motion meet with the opponent and try to narrow any areas of disagreement.

Local Rule 11 also governs discovery and plays a major role in moving the case toward final resolution. Even before the 1993 revisions to the Federal Rules of Civil Procedure, the Rocket Docket had severely limited discovery by local rule. Indeed, the court opted out of the "early disclosure" requirement of the 1993 amendments to Rule 26 because it would retard, not accelerate, its own quick-paced discovery procedures. Local Rule 11 limits a party to thirty interrogatories and five nonparty depositions. The rules also impose strict deadlines on objecting to discovery requests, allowing only fifteen days between the request and an objection. Also, once the court rules on motions to compel or protective orders, the party affected by the ruling must comply within eleven days. Again, parties disputing discovery matters must meet and try to iron out their differences. If they do not, the court simply will not consider any related discovery motions.

A host of other local rules govern venue matters, the use of discovery at trial, and the role of the Magistrate Judges. All add up to a docket strictly controlled by the court. That control, and the results achieved, mark the Eastern District of Virginia as the most efficient federal trial court in the United States. It can provide some decided advantages to plaintiffs and some dangerous pitfalls to defendants.

The plaintiff, of course, has prepared in advance and has selected the Eastern District of Virginia as its choice of courts. But that choice could erect significant hurdles to our multinational International Widgets, which might find itself a defendant in the Rocket Docket. It must mobilize its litigation forces and be prepared to make some quick and strategically accurate decisions.

Developing a Sound Strategy

One of the first decisions the defendant faces is how to cope with the Eastern District's panoply of local rules governing motions, pretrial conferences, discovery, and cooperation with opposing counsel. If the defendant feels at a disadvantage, it might consider whether there are good grounds for making a motion for a transfer to another federal court under the doctrine of forum non conveniens. Even if it can show judicial economies and a furtherance of justice through a trial in one of the other federal courts in the country (because of location of witnesses and documents, for example), however, rarely is a defendant able to successfully avoid the whirlwind ride on the Rocket Docket. The plaintiff might just add a second defendant who distributes widgets locally in the Eastern District of Virginia. The prospect of transfer then becomes even more remote. The Eastern District just will not sever and stay cases under any circumstances.

If transfer appears unavailable, the defendant, especially the international defendant, must be prepared for quick thinking, quick decisions, and quick action. "Trials" in the Eastern District encompass all issues, tried together in one presentation to court or jury, bifurcation of issues for separate trials being a distinct rarity: all validity issues, all infringement issues, all damages issues, everything. And if those issues are tried to a jury, that jury is drawn from one of the most highly educated populations in the country. Because of this expertise, and because many jurors are or were federal government workers, and because the United States Patent and Trademark Office is located in the Eastern District, the jury quite likely will bring a propatent perspective to the case.

Riding the Rocket Docket to Litigation Success

Though suing or being sued in the Eastern District's Rocket Docket can proceed at a frenetic pace, the end of the trip must spell success for someone, plaintiff or defendant. That success often depends on the ability to use the Rocket Docket's procedures to one's own advantage.

By setting early trial dates and sticking to them, the Rocket Docket forces litigants to focus quickly on the key issues in the case. As a general rule, discovery also tends to be more focused, more compressed. But if a savvy litigant commits sufficient resources to pursuing full discovery immediately upon the filing of the Complaint, the breadth and depth of discovery can be comparable to cases filed elsewhere. Neither party should sit idly by during the first twenty days or so when the Answer to the Complaint is being prepared. A plaintiff can serve discovery requests with its Complaint. The defendant, meanwhile, can and often should serve discovery requests before it even files the Answer to the Complaint.

One drawback to the Rocket Docket's tight discovery schedule is that counsel for the parties cannot afford to spend much time negotiating (some call it "horsetrading") over discovery disputes. Consequently, attorneys will deal with a much larger proportion of these disputes through motions to compel and motions for protective orders. Though handled quite expeditiously by the Magistrate Judges, this unfortunate fact of life in the Rocket Docket does tend to drive up the costs of litigation.

Rocket Docket: The Economy Model?

Ironically, the high cost of litigation motivated the judges on the Rocket Docket to develop their tight discovery schedules. According to their rationale, parties would spend less money to prepare and try a case in six to seven months in the Rocket Docket than they would in other federal courts where two or three years can go by before trials even begin. While total costs do go down in Rocket Docket cases, our experience shows that a case coming to trial in one-third the time will not necessarily translate into a proportionate decrease in costs.

In patent litigations, where the outcome has major commercial ramifications, large litigation costs that might be spread out in other federal district courts are simply compressed into a period of several months in Rocket Docket cases. Complete and thorough discovery, after all, is just that: complete and thorough. To prevail in important patent litigations, discovery—indeed, all trial preparation—must proceed with one goal in mind: success in the ultimate outcome. Though we have seen some cost savings in Rocket Docket cases, one should not overestimate the savings available, especially in cases where the commercial stakes are high.

The premium in all cases in the Eastern District remains the same, however: speed. So brace yourselves, plaintiffs and defendants. The ride on the Rocket Docket might be tricky. It might even be costly. But it will always be fast.