Big week for venue—Is Judge Albright criticizing district courts that stay cases pending IRP resolutions? And the Federal Circuit rules against common sense and judicial experience.

Texas is home to over 40% of all patent litigation. And with that many on-going cases, important changes happen weekly. To keep you updated, Michael Smith, author of the award winning edtexweblog.com, shares both his research and his local perspective about what's happening around the entire state.  

 

SPEAKERS

Wayne Stacy, Michael Smith

 

Wayne Stacy  00:00

Welcome, everyone. This is Wayne Stacey from the Berkeley Center for Law and Technology. And I'm here today again with Michael Smith, from his new firm of Scheef and Stone. Everyone knows Michael is the creator and curator of the material on the Eastern District of Texas blog or EDTexlawblog.com. And Michael is probably the foremost expert on what's going on all throughout Texas these days, not just the Eastern District. So Michael, thank you for joining us again today.

 

Michael Smith  00:35

W ell, thank you for having me. It's good to be here.

 

Wayne Stacy  00:39

Well, let's just start with the easy question. Tell us what happened in Texas last week?

 

Michael Smith  00:44

Well, we got some guidance from the Court of Appeals.

 

Wayne Stacy  00:49

Well, tell us tell us about that.

 

Michael Smith  00:51

Well, there's a couple of cases that I wanted to mention. The first comes out of the Eastern District of Texas. In an Eastern District case, the Fifth Circuit resolved a mandamus petition on whether documents that a district judge had ordered produced were protected by the attorney client privilege. In this case Judge Mazzant up in Sherman ordered the defendant to produce 53 documents that it contended were privileged, the defendant had filed a petition for writ of mandamus challenging that holding that 19 of the documents lacked attorney client privilege, and the other 34 were subject to the crime fraud exception. Now the Fifth Circuit upheld on the 19 documents, but it granted mandamus on the 34 crime fraud accepted documents.

 

Wayne Stacy  01:35

So Mike, I'm gonna ask a quick question that's kind of California related. But in California state court, judges don't actually look at these documents in camera. They they study the privilege log, because they don't want to be tainted by actually reading the attorney client privilege documents. What's the procedure, typically used by Judge Mazzant.

 

Michael Smith  01:57

The procedure with Judge Mazzant is typically that he will look at documents in camera and I know that in this case, he actually did he requested the documents, reviewed them in camera in the order that we're talking about was after he had reviewed them in camera and concluded which ones he thought were covered by the privilege which ones were not, and on which one the privilege had been waived.

 

Wayne Stacy  02:20

That's something important for California lawyers to remember that other judges do look at those documents. And even though they may not be produced, they can leave a little bad taste in the judge's mouth. So tell us why this particular mandamus was granted.

 

Michael Smith  02:37

Well, with respect to the crime fraud accepted documents, the pane