By Memorandum Opinion entered by the Honorable Maryellen Noreika in Cignex Datamatics, Inc. v. Lam Research Corp., Civil Action No. 17-320-MN (D.Del. March 11, 2019), the Court denied the motion of defendant Lam Research Corporation seeking a finding of spoliation and entry of sanctions against plaintiff Cignex Datamatics, Inc. for failure to preserve the emails of certain employees of plaintiff that worked on the software development project that was the subject of the breach of contract litigation between plaintiff and defendant.

Upon evaluation of the motion, the Court found that, since the issue of spoliation turned on plaintiff’s loss of ESI, Federal Rule of Civil Procedure 37(e) governed the analysis. Id. at*7. The Court did find that plaintiff should have preserved at least some of the email accounts identified by defendant but failed to take reasonable steps to do so after litigation was reasonably anticipated. Id. As to the third threshold issue of Rule 37(e), the Court found that defendant did not make a showing that the lost emails could not be restored or replaced through additional discovery. Id. at *8. The Court also found that defendant did not make a sufficient showing to invoke the intentional and willful spoliation analysis of Rule 37(e)(2); rather, it was appropriate to proceed under the negligence spoliation analysis of Rule 37(e)(1). Id. at *9. The Court thereafter found that there was not a sufficient showing on the record for the Court to find that defendant was prejudiced by the loss of the ESI and, thus, imposing a curative measure under Rule 37(e)(1) would be inappropriate. Id. at *10-11.

A copy of the Memorandum Opinion is attached.

The United States District Court for the District of Delaware has announced the selection of Jennifer L. Hall to fill the new United States Magistrate Judge position in the District of Delaware.  A copy of the Court’s announcement is attached.

Yesterday, the United States Court for the District of Delaware provided an update on its case assignments and Magistrate Judges utilization plan in light of the last week’s retirement of Judge Gregory M. Sleet.

The update advised that, with few exceptions, all open cases that were formerly assigned to Judge Gregory M. Sleet (GMS docket) have been reassigned to one of the four active District of Delaware District Judges. Newly-filed cases are being assigned in essentially equal numbers to the four active District of Delaware District Judges: Chief Judge Leonard P. Stark (LPS docket), Judge Richard G. Andrews (RGA docket), Judge Colm F. Connolly (CFC docket), and Judge Maryellen Noreika (MN docket).

With respect to utilization of the three Magistrate Judges in the District of Delaware, going forward, in newly-filed cases, Chief Magistrate Judge Mary Pat Thynge will work with all four active District Judges. Magistrate Judge Christopher Burke will be paired with Chief Judge Stark and Judge Noreika, and Magistrate Judge Sherry Fallon will be paired with Judge Andrews and Judge Connolly. Each District Judge will determine how he or she will utilize the Magistrate Judges.

A copy of the District of Delaware’s Updated case assignment and Magistrate Judge utilization plan is attached.

After oral argument before The Honorable Michael A. Chagares, The Honorable Kent A. Jordan, and The Honorable Julio M. Fuentes, the United States Court of Appeals for the Third Circuit by Opinion entered in Encompass Insurance Co. v. Stone Mansion Restaurant Inc., No. 17-1479 (3d Cir. August 22, 2018) upheld the practice of snap removal after finding that (1) the language of 28 U.S.C. § 1441(b)(2) is unambiguous and [i]ts plain meaning precludes removal on the basis of in-state citizenship only when the defendant has been properly joined and served”; and (2) the interpretation permitting snap removal does not defy rationality or render the statute nonsensical or superfluous. Id. at * 8-13.

The Court recognized that the result of the practice may be peculiar to the extent that it allows defendants to use pre-service machinations to remove a case that it otherwise could not when the forum defendant rule applies; however, “the outcome is not so outlandish as to constitute an absurd or bizarre result.” Id. at *13. The Court also recognized that “[r]easonable minds might conclude that the procedural result demonstrates a need for change in the law; however, if such change is required, it is Congress – not the Judiciary – that must act.” Id. at *13.

A copy of the Opinion is attached.

Fox Rothschild LLP congratulates its partner, Greg Williams, for being included on the 2018 list of the “Most Influential Black Lawyers” by Savoy Magazine. This was Greg’s second time being selected to the prestigious list.

Greg is a trailblazer, trial attorney and litigator at Fox Rothschild LLP with more than 23 years of experience representing clients in business, intellectual property and real estate litigation. Greg is a former President of the Delaware State Bar Association, a former President of the Barristers’ Association of Philadelphia, Inc., and former Chair and member of the Delaware Judicial Nominating Commission. Greg also is the former Office Managing Partner of Fox Rothschild’s Wilmington Office and was the first African-American to serve as an Office Managing Partner and the first African-American to serve as a Member of the firm’s Executive Committee – the firm being more than 100 years old.

As author of the firm’s Delaware Intellectual Property Litigation blog, Greg analyzes and discusses intellectual property decisions rendered by the U.S. District Court for the District of Delaware.

Greg is a graduate of Villanova University School of Law and Millersville University.

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The Honorable Colm F. Connolly and The Honorable Maryellen Noreika both were sworn in as District Judges on the United States District Court for the District of Delaware this week.  They became the 26th and 27th individuals in the history of the Court to be appointed as District Judges.

The Court announced that Judges Connolly and Noreika will begin to be assigned new cases on August 15, 2018.  The Court will be eliminating the Vacant Judgeship (“VAC”) docket.  VAC cases that are currently assigned to a Magistrate Judge without consent of the parties to the jurisdiction of the Magistrate Judge will be reassigned to a District Judge – primarily Judges Connolly and Noreika.  The Court also will be phasing out the regular assignment of cases to Visiting Judges.  Cases that are currently assigned to a Visiting Judge will remain with the assigned Visiting Judge or may be reassigned to a Delaware District Judge – primarily Judges Connolly and Noreika.

The Court also announced that Senior Judge Sleet will be retiring from the bench at the end of September.  All cases assigned to Judgle Sleet (“GMS”) will be reassigned primarily to Judges Connolly and Noreika by a date on or around Judge Sleet’s retirement.  With the addition of Judges Connolly and Noreika, the Court is back to full strength.

A full copy of the Court’s Announcement is attached hereto.