By Craig Clough

Law360 (July 14, 2020, 7:32 PM EDT) -- Cox Communications urged a Delaware federal judge on Tuesday to reschedule an upcoming jury trial for a patent infringement lawsuit filed against it by ChanBond LLC, arguing the COVID-19 pandemic poses too many health risks and challenges.

Cox asked the judge in a letter to push the Aug. 18 trial to November, by which time "the current health crisis will hopefully be under control."

The company also told U.S. District Judge Richard Andrews it believed his stated plan to use the trial as a bellwether for other ChanBond cases could no longer be effective. ChanBond filed 13 lawsuits in 2015 asserting its high-speed networking patents against major cable companies including Cox, Charter Communications Inc., Time Warner Cable Inc. and Comcast Corp.

Issues such as "presenting witnesses by video, and limiting the number of counsel who can appear live, might substantially impact the trial presentation," Cox said. "Many courts acknowledge that remote testimony impairs a factfinder's ability to judge credibility."

ChanBond's lawsuit against Cox asserts U.S. Patent Nos. 7,941,822; 8,341,679; and 8,984,565, and the company filed the suit on the same day in 2015 that it also filed the other 12.

In a response to Cox's letter, ChanBond said Tuesday that it did not object to the concept of delaying the trial, but also that it "comes as no surprise to ChanBond, as Cox and the other defendants have sought to delay trial in these matters since these cases were filed."

Judge Andrews during a February hearing rejected a ChanBond motion to consolidate the cases, saying it "would produce a ridiculous mismatch of a case."

The judge added, "You know, my whole thing as a judge is to try to simplify things, and 13 defendants is not any kind of thing that could possibly be comprehended."

In its letter to the judge, Cox said holding the trial in August could impact the jury pool since older jurors have a heightened risk to COVID-19. An August trial would also present significant challenges for attorneys and witnesses who may need to travel from out of state, as the movement could require them to be self-quarantined for 14 days, Cox said.

"Ultimately, the defendant may believe itself prejudiced by some of these changes, and plaintiff by others, but nobody will consider the case a good test of how to proceed with the remaining 12 cases," Cox said in the letter. "In fact, any appeal from the Cox case may focus on prejudice perceived by the losing party, rather than on the merits."

Cox also said that because ChanBond is not an active company a delay would not harm it.

"This is not a competitor litigation," Cox said. "While Cox appreciates that ChanBond is eager to try its case, as a non-practicing entity with no business other than seeking monetary damages for the asserted patents, ChanBond will suffer no prejudice by a short continuance."

The letter comes one day after a different Delaware federal judge rescheduled a jury trial planned for next month between Sunoco and Magellan Midstream over gasoline patents, scrapping an earlier, "experimental" plan to have jurors attend in-person with witnesses testifying remotely due to the pandemic.

Chief U.S. District Judge Leonard Stark postponed the trial, which had been scheduled for Aug. 3, after the parties wrote letters to the court on Friday and Saturday. Sunoco Partners Marketing & Terminals LLC requested a postponement, citing increasing COVID-19 cases in Delaware, while Magellan Midstream Partners LP said the case was ready for trial.

Early last week, Judge Stark ruled that delaying the trial further because of the pandemic was not preferable. He had decided to hold the trial, which he called "something of an experiment," in a courtroom with jurors attending in-person, as well as the two fuel companies' lawyers and corporate representatives, though the latter groups would be extremely limited in their numbers. Meanwhile, the witnesses would have appeared by a live video link.

Counsel for the parties did not immediately respond to requests for comment.

ChanBond is represented by Robert A. Whitman, Mark S. Raskin, John F. Petrsoric, Michael DeVincenzo and Andrea Pacelli of King & Wood Mallesons and Stephen B. Brauerman of Bayard PA.

Cox is represented by Jennifer Ying of Morris Nichols Arsht & Tunnell LLP.

The case is ChanBond LLC vs. Cox Communications Inc., case number 1:15-cv-00842, in U.S. District Court for the District of Delaware

--Additional reporting by Sarah Jarvis. Editing by Orlando Lorenzo.

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