Guardant Health, Inc. v. Found. Med., Inc.

GUARDANT HEALTH, INC., Plaintiff, v. FOUNDATION MEDICINE, INC., Defendant.

C.A. No. 17-1616-LPS-CJB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

November 17, 2020

MEMORANDUM ORDER

This patent infringement suit between competitors - Guardant Health, Inc ("Guardant" or "Plaintiff") and Defendant Foundation Medicine, Inc. ("FMI" or "Defendant") - has been vigorously litigated for three years. Most recently, the Court has considered whether to proceed with a jury trial that had been scheduled to commence this month, notwithstanding the ongoing challenges imposed by the impact of the global coronavirus pandemic and FMI's objections; a substantial motion alleging spoliation by Plaintiff's co-founder and Chief Executive Officer and whether fully and fairly litigating that motion precludes holding trial any time soon; and Defendant's renewed Daubert motion directed at two of Guardant's expert witnesses. Each of these issues is addressed in the instant Order.

The Court Overruled FMI's Coronavirus-Related Objections To A November 2020 Trial

Prior to the pandemic, a jury trial in this case was scheduled to begin on May 18, 2020. (D.I. 24) By agreement of the parties, that date was rescheduled to early November 2020. (D.I. 394) Due to the pandemic, however, jury trials in this District were cancelled from mid-March through September 15, 2020, creating a significant backlog in scheduling trials.¹ Between September 25, 2020 and October 29, 2020, the Court ordered and received multiple submissions from the parties, and had several discussions with the parties, relating to scheduling, and ultimately reset trial to begin on November 30, 2020. (See D.I. 471, 473, 475, 480, 487-88, 498-99) In doing so, the Court carefully considered FMI's continuing objections to trial being held any time before 2021.

As the Court explained during an October 29 teleconference, the Court was not persuaded by FMI's coronavirus-related objections to conducting a jury trial in November 2020, stating as follows:

Let me turn to the question of the November 30th trial and FMI's objections . . . .

. . . I will continue to be looking carefully at these issues as we move forward in whatever form we move forward.

. . . I'm thinking about them in connection with many other cases at the same time and also in my administrative role for the Court. So every day, I'm getting more and more information about the situation in Delaware, the situation elsewhere, and more and more information, I'm happy to say, about how other courts are proceeding with trials, notwithstanding the challenges we're all facing. So the first thing I wanted to say [is] I do recognize the risk. . . . I don't mean to minimize any of the concerns that have been raised, but I do, recognizing all that, continue to believe that this trial can be conducted safely and fairly here in Delaware starting on November 30th consistent with the restrictions and the guidelines that I have explained that we will follow and subject to further ongoing discussions with all of you.

And, of course, I will continue to evaluate conditions as they evolve. In Delaware here, as best as we can tell, it seems that the coronavirus numbers are fairly steady. Some days we see an increase, some days we see a decrease . . . . [I]t certainly does not yet appear in the data that things are rapidly deteriorating in Delaware. Were that to happen, I certainly would have to reconsider my approach.

I have provided for this trial for remote participation . . . for all of the witnesses, but also up to all but one counsel on each side can participate remotely as well. Iplaced a limit of five folks per side in the courtroom at any one time . . . . [T]hat is a ceiling, it's not a floor. I do want you to have at least one person in the courtroom. But I think you could, you could do this trial with one person in the courtroom and everyone else can participate remotely. Part of the reasoning of that was I recognize that at least one side is telling me that they have half . . . of their trial team that feels it would not be wise for them to travel to Delaware November 30th. Part of my thinking was, well, . . . that is fine if that is your decision. You can participate fully, entirely and effectively from wherever it is you are safe through the remote technology, or alternatively I have given you enough time. You can find somebody else to do your part of the trial. I do not want, and in going forward with this trial, I'm not trying to create any requirement for someone to risk their health by coming to Delaware for their trial. You don't need to come to Delaware for this trial.

Further, the suggestion in one of FMI's filings [is] that you are going to have to spend lots of time together with other members of the trial team without preserving social distance, . . . in a way that is going to endanger your health or the health of others[.] I just don't understand that. You can prepare for this trial remotely. . . . You can use large rooms where you maintain . . . social distancing and wear masks. Obviously, we're all learning to do almost everything through remote technology. And I see no reason to think that you cannot, as trial teams, prepare for this trial while still keeping a safe and healthy distance from one another, either in the same room or in different rooms potentially all over the country.

I will be explaining to this jury in great detail the protections and the precautions that we are undertaking and how this trial will look different than trials would have looked pre-pandemic. I'll explain, of course, that no witnesses will be in the courtroom and that many attorneys will not be in the courtroom as well. I will explain that these are decisions that I have made, that I have determined are in the best interest of all of us to protect our health and safety and most especially theirs, that is, the jury's. I will do everything I can to encourage them not to blame any of you for that situation or to hold it against anybody. And I strongly believe the jury will comply with that instruction. I see no reason to think that the jury is going to somehow hold the precautions that I'm putting in place against FMI and hurt them or punish them for it. I think those suspicions are just unwarranted.

[M]any courts around the country have resumed conducting trials, including complex trials, including patent jury trials. I talked to several judges who have presided over these. . . . The general reports are very good. I just believe that we can do this here [in] Delaware, just as other courts have found a way to do it.

. . . . I recognize that there are some troubling predictions about what direction this pandemic may be headed in, but if that turns out to be right and we're living with this pandemic for another year or more or who knows, that just to me means as long as it can be done . . . protecting health and safety, which I think it can, . . . I need to move forward with a jury trial . . . . [I]f this one is ready for trial on November 30th, then it should go forward on November 30th.

As you may know, I plan to be in a criminal jury trial starting on November 16th, two weeks before this trial. . . .[²] We're also, as a District, proceeding in the near future with selecting a new Grand Jury, and other courts have successfully done the same. These events . . . require many more people in the courthouse than your civil jury is going to require. If, as I fully expect, we can safely do a criminal jury trial where we will have at least 14 jurors and a very large jury pool, and a Grand Jury is even larger than that. . . . [i]f we can do those safely, then we can do your civil jury trial safely.

Notably, at the criminal trial that I have coming up on November 16th, I'm having some witnesses testify remotely. I continue to believe that juries, just like the Court, . . . can fully and fairly evaluate credibility when witnesses testify live but remotely. . . . [S]o I continue not to find persuasive FMI's objections on those grounds.

. . . . I believe we will be able to select a representative jury and that we will not have to bring an inordinate number of jurors into the courthouse. I believe we will be able to do that largely through using a COVID jury questionnaire which I had my deputy share with you . . . . And by having further conversations over the course of the next 30 days or so where I think we'll be able to see how the jury pool is shaping up, I think we will be able to agree on many of the potential jurors that can be stricken based on their COVID responses. And I think we will be able to safely impanel a representative jury.

If I'm wrong, then one or both sides will object and I will deal with the objections, but those are not bas[es] to not go forward. So in terms of the objections to the trial based on COVID, those objections are again overruled. If you want to keep raising them, you can keep raising them. I have invited you to do that and I'm not in any way faulting you. Things could change quickly. But I think I have been clear about my feeling about the arguments that have been raised.

(Oct. 29, 2020 transcript (D.I. 503) at 75-83)

The Court Continued Trial To Allow Full And Fair Consideration Of FMI's Sanctions Motion

Although the Court overruled FMI's COVID-related objections, the Court ultimately determined it had to continue trial indefinitely in order to allow the parties a full and fairopportunity to litigate FMI's very serious spoliation allegations and permit the Court to carefully consider what, if any, sanctions are warranted. The Court explained this decision during a teleconference with the parties on November 2, after hearing argument (for a second time) on the pending motion:

First, and most importantly, at least most pressingly, reluctantly but I think necessarily under the circumstances as they have developed with respect to FMI's spoliation motion, I have now decided that I have to continue the trial. We're not going to

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