Sony Wants Pretrial Conference By Video After Atty Gets Virus

By Tiffany Hu
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Law360 (November 18, 2020, 10:38 PM EST) -- After a plaintiffs' lawyer tested positive for COVID-19 in a patent case against Sony involving computer graphics, the electronics giant has urged an Eastern District of Texas judge to hold an upcoming pretrial conference by video, while the plaintiffs argue that the hearing should go forward in-person because the infected attorney won't be there.

In a joint notice filed Tuesday, Sony Interactive Entertainment and Infernal Technology LLC notified U.S. District Judge Rodney Gilstrap that one of Infernal's attorneys in Dallas recently tested positive for COVID-19, though both sides disagreed on what that means for a Nov. 23 pretrial conference ahead of a patent trial slated to begin on Dec. 4. 

Infernal said the conference should remain in-person, as the attorney in question has been quarantined and will not attend. It admitted, however, that two of its participating attorneys have been in physical contact with the attorney over the past 14 days, but that both tested negative.

Sony, for its part, argued that "a negative test mere days after exposure is not conclusive," and symptoms may not appear for several days, which is why people are supposed to quarantine.

"Plaintiffs have not indicated the extent of contact of those who will attend the pretrial conference with the attorney that tested positive," Sony wrote. "If they were in close contact, obviously they should be self-isolating at home for 14 days from the most recent exposure."

Sony added that Infernal's lead attorney Eric Buether just returned from Brazil — a high-risk country — and should quarantine for 14 days. Infernal claimed that the Centers for Disease Control and Prevention's guidelines do not require him to do so, but Sony said it was "unclear" whether that was truly the case.

As such, an in-person hearing "would unduly place the court, its staff, the attorneys, and anyone else attending in person at an unnecessary risk of exposure to COVID," Sony said.

On Wednesday, Judge Gilstrap issued an order stating that the pretrial conference is to be held "in Marshall, Texas" before the judge, but it was not immediately clear whether he had considered the parties' arguments.

Buether, who confirmed that he will take a COVID-19 test Wednesday, told Law360 in an email that it is "up to the court to determine what is the best course of action, from a case management and health perspective."

"Plaintiffs' point is that, assuming my test is negative, as has been the tests for the virus recently taken by each of the other attorneys who plan to attend the hearing on behalf of plaintiffs, we do not see any justification for conducting this hearing in a less efficient and effective manner," Buether said.

An attorney for Sony declined to comment Wednesday.

The fight over whether to hold in-person hearings is the latest instance of Texas courts grappling with the COVID-19 pandemic, which is seeing a new wave of cases across the country. The state has reported more than 59,000 new cases statewide over the past seven days, according to data from the Texas Department of State Health Services.

Earlier this week, Eastern District of Texas Judge Amos L. Mazzant III granted a mistrial in a separate breach of contract trial that led to 13 participants testing positive for the coronavirus.

The ruling came after the number of trial participants who tested positive for the coronavirus had increased from at least seven last week to 13 confirmed positives on Tuesday. Judge Mazzant said the trial will be scheduled for some time in 2021, apologizing in a phone call to the parties' attorneys on Tuesday.

The present case began in July when Infernal and game developer Terminal Reality Inc. accused Sony of infringing patents covering lighting and shadowing techniques in computer graphics.

According to the complaint, Terminal Realty created a graphics engine called the "Infernal Engine" and licensed its patented technology to other game makers, including Infernal in 2014. Sony's Playstation console and video games infringe two of those patents, the suit states.

On Wednesday, Judge Gilstrap separately denied Sony's request to transfer the case to the Northern District of California, finding that it waived its right to challenge venue. 

The patents-in-suit are U.S. Patent Nos. 6,362,822 and 7,061,488.

Infernal is represented by Eric W. Buether, Christopher M. Joe, Kenneth P. Kula, Theresa M. Dawson, Nicholas C. Kliewer, Michael Pomeroy and Thomas J. Gohn of Buether Joe & Counselors LLC.

Sony is represented by Melissa Richards Smith of Gillam & Smith LLP and Eric A. Buresh, Jason R. Mudd, Mark C. Lang, Kelly Hughes and Karyn Kesselring of Erise IP PA.

The case is Infernal Technology LLC et al. v. Sony Interactive Entertainment LLC, case number 2:19-cv-00248, in the U.S. District Court for the Eastern District of Texas.

--Additional reporting by Katie Buehler. Editing by Bruce Goldman.

For a reprint of this article, please contact reprints@law360.com.

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