Video Killed The Discovery Star

One of many legacies of the COVID period is using Zoom/Groups/different video platforms as a part of a litigator’s common workflow. In my case, these instruments have put me in the identical digital room as opposing in-house counsel for direct negotiation of a patent license, in addition to in a digital mediation room hosted by a federal Justice of the Peace choose. These beforehand unthinkable interactions are after all simply snacks in a gradual food plan of video calls with shoppers, opposing counsel, and people trying to do enterprise with our agency. I’ve finished calls late at night time and very first thing within the morning with representatives of Asian firms and legislation corporations, simply as simply as I’ve finished mid-afternoon calls with colleagues domestically, regardless of their time zone. In brief, I and lots of others have been dwelling by way of a revolution in how we talk as attorneys, with what was beforehand a figment of the creativeness having became a each day actuality for a lot of of our practices.

My fascinated about this important shift and its impacts was spurred by a latest order I noticed in a patent case pending in Maryland that mentioned using video in an attention-grabbing means. For some motive, it jogged my memory of the well-known launch of MTV, with its airing of “Video Killed the Radio Star” sending a message that the music business would by no means be the identical. Whereas I don’t need to get too hyperbolic right here, there was one thing hanging about how shortly the partitions have come down across the thought of a lawyer’s workplace as their sanctum — a sentiment now changed with the very actual chance of a lawyer becoming a member of a video convention from their bed room. Certain, there are super value financial savings and effectivity beneficial properties enabled by the supply of videoconferencing to even probably the most technologically challenged lawyer’s toolbox. However as with each development, there’s additionally one thing misplaced within the course of. Name it mystique, or dignity, or skilled distance — there’s a good argument that may be made that sure kinds of authorized exercise don’t translate very nicely to the world of video both.

It was attention-grabbing, due to this fact, to see the District of Maryland’s Hon. Stephanie A. Gallagher enter an order in a long-running patent dispute — pending since 2018 — referring to enforcement of the native rule for counsel to interact in a significant meet and confer course of on attempting to resolve points referring to their respective skilled challenges beneath Daubert. (For her half, Gallagher has had a modest share of patent circumstances in her time on the bench, however nobody would think about Maryland a hotbed for patent filings.) In her order, the court docket didn’t hesitate to remind the events that she “has neither the time nor the inclination to evaluation an infinite stream of correspondence filed by attorneys who haven’t engaged within the required meet and confer course of.” Accordingly, she ordered the events to carry “not less than a two hour meet and confer, both in-person or by videoconference” — with a recording made from the meet and confer regardless of which possibility the events selected.

The order continued that following the meet and confer “the recording needs to be submitted to the Court docket together with the joint submission, in order that this Court docket can assess the events’ respective good religion efforts to succeed in decision of their disputes.” For me not less than, such an order was an unique try to rein in legal professional noncompliance with native guidelines. Extra importantly, I ponder how a lot the truth that we’re training in a video-driven age made the concept of recording a meet and confer for the court docket’s evaluation palatable to the choose.

To their credit score, counsel seem to have complied with the court docket’s order with out criticism. In a letter dated Could 16, 2024, counsel confirmed for the court docket that the ordered two-hour-plus meet and confer had taken place — and had been video recorded as nicely. Counsel provided to ship the court docket the recording, in addition to a recording of a previous meet and confer on the identical points that befell through videoconference simply earlier than the court docket’s order was issued.  The latter provide raises the query of whether or not the court docket already knew {that a} prior meet and confer had been recorded. The truth that her order didn’t specify a request for that video recording means that it didn’t. Both means, will probably be attention-grabbing to see if any such recording of meet and confer observe — between events, or as ordered by judges — begins to take root in patent circumstances nationwide, or will solely pop up on an advert hoc foundation in a restricted set of circumstances.

In the end, everyone knows {that a} sure class of litigator continues to have a good time their ability at obfuscation and appearing powerful in discovery contexts. Will it grow to be customary observe for litigators opposing such sharp practitioners to insist on video conferences as a means of attempting to restrict such habits? Will it grow to be customary observe to document video meet and confer periods for submission to judges as proof of compliance or unhealthy habits by one or the entire individuals?  The better it’s to arrange these video conferences — and click on a easy document button to create a recording — the extra doubtless it’s that litigator consolation with these prospects is prone to improve. For now, there stays some glory out there for litigators that take a bulldog method to dealing with discovery. However we could quick be approaching the day the place we will say that video killed the invention star.

Please be at liberty to ship feedback or inquiries to me at gkroub@kskiplaw.com or through Twitter: @gkroub. Any matter solutions or ideas are most welcome.

Gaston Kroub lives in Brooklyn and is a founding companion of Kroub, Silbersher & Kolmykov PLLC, an mental property litigation boutique, and Markman Advisors LLC, a number one consultancy on patent points for the funding group. Gaston’s observe focuses on mental property litigation and associated counseling, with a powerful give attention to patent issues. You possibly can attain him at gkroub@kskiplaw.com or comply with him on Twitter: @gkroub.