WDTX Judge Says Virus Case Drop Means Trials Start Soon

By Daniel Siegal
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Law360 (August 19, 2020, 6:12 PM EDT) -- Judge Alan Albright of the Western District of Texas said the district's Waco division will resume jury trials Sept. 1 despite the rest of the district putting them off until the following month, citing a "meaningful decline" in new COVID-19 cases around the division.

Western District Chief Judge Orlando Garcia's order earlier this month that civil and criminal bench and jury trials through Sept. 30 be continued "allows for individual divisions to hold jury trials if the most senior district judge in that division determines they may be held safely."

Judge Albright, as the only district judge in the Waco division, wrote in his Tuesday order that he feels it is safe to resume in-person bench and jury trials in the division, which encompasses 13 counties. As of the start of July, he said, these counties have seen a meaningful decline in new reported COVID-19 cases.

Judge Albright noted that McLennan County, where the Waco courthouse is located, is one of the "densest and most populated" in the division and has seen a 70% drop in its rolling seven-day average of daily positive COVID-19 tests, according to county health data. The county has roughly 250,000 residents, according to the U.S. Census Bureau.

The order also pointed to data from the Centers for Disease Control and Prevention that the counties in the division make up just 2.3% of all the COVID-19 cases in Texas and said they collectively have fewer cases than either Travis County, which contains Austin, or Bexar County, home of San Antonio.

Judge Albright said the division has undertaken "great efforts" to make sure it can conduct trials safely, including preparing to maintain social distancing in the courthouse and courtroom, limiting the number of people in the courtroom, providing masks and hand sanitizer to jurors and installing plexiglass shields in the courtroom.

The order said the courthouse is not open to people who have been directed by a public health agency to self-quarantine, people who have tested positive for COVID-19 or live with someone who has, and people who currently have COVID-19 symptoms like fever, chills, cough and shortness of breath.

The order also bars people who have traveled in the last 14 days to China, South Korea, Japan, Iran, Brazil or Western Europe.

Judge Albright's law clerk Austin Schnell told Law360 on Wednesday that this list was based on similar orders from other Texas federal courts, and will change as the court continues to evaluate the criteria.

Schnell added that Judge Albright currently has some criminal trials scheduled for next month and that, "despite the court's willingness to hold patent trials in September, there are none currently set."

The order comes the same day that Judge Albright set an October 5 start date for a jury trial in which on MV3 Partners LLC's claims that Roku of infringing its streaming media patent.

Judge Albright last week had noted his surprise when Roku's attorneys asked him to again delay the trial because of safety concerns related to the coronavirus pandemic.

The trial was set to start June 1, June 29, Aug. 3 or Aug. 10, and most recently Sept. 3 or Sept. 4, but each time Judge Albright pushed it off due to the pandemic.

During last week's phone conference, Judge Albright agreed to scrap the September start date and find a new one, possibly in October, but added that the court was ready to head to trial in September and was surprised the parties didn't feel the same way, according to minutes of the conference in the court docket.

In Tuesday's order opening the Waco division back up for trials, Judge Albright said the division sought feedback from judges and lawyers who have conducted in-person trials since the outbreak of the pandemic, and has taken that feedback into account.

Although those judges aren't specified in the order, Chief Judge Rodney Gilstrap of the Eastern District of Texas earlier this month conducted a patent trial between PanOptis and Apple. That trial ended with a $506 million verdict for PanOptis, whose attorneys told Law360 afterwards that it had felt surprisingly normal.

-- Additional reporting by Dani Kass. Editing by Marygrace Murphy.

Update: This story has been updated to include the MV3 v. Roku trial date.

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

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