Key Points

• District of New Jersey denied request to extend discovery deadlines pending resolution of confidentiality order dispute.
• Judge expects parties to resolve patent prosecution bar and FDA bar disputes without court involvement.
• Local Patent Rule 2.2 provides Attorney's Eyes Only default protection, eliminating DCO disputes as grounds for delay.
• Scheduling order deadlines remain in effect even where DCO has not been entered.

A Key Expectation

A recent text order from U.S. Magistrate Judge Leda D. Wettre is a pointed reminder to patent litigants in the District of New Jersey that an unresolved dispute over the terms of a discovery confidentiality order (DCO) will generally not justify delaying other case deadlines.

In In Re Radicava ORS, Judge Wettre refused to set a briefing schedule for an ongoing DCO dispute and declined the parties’ joint request to push back contentions deadlines until one day after the court entered the DCO. The decision underscores a key expectation in the DNJ: discovery must move forward, and parties should strive to resolve DCO disagreements among themselves.

Background

As we discussed in a recent alert, the subject of discovery confidentiality orders frequently arises in the DNJ and other courts, particularly in patent litigation where sensitive technical and business information is at stake. Although the DNJ provides a form DCO, parties routinely negotiate modifications. Those negotiations do not always go smoothly. And when they stall, parties sometimes look to the court for additional time.

That is precisely what happened in Radicava.

The defendants wrote to Judge Wettre on March 2, 2026, requesting a third extension of the deadline for the parties to submit a proposed DCO and for the defendants to serve their Invalidity and Non-Infringement Contentions. The sticking point was the scope of the FDA and patent prosecution bars in the DCO, which the parties had been unable to resolve despite diligent negotiations.

The parties proposed a briefing schedule culminating in a joint letter to the court by March 13 and asked that the contentions deadline be pushed back to one day after the court entered the DCO — with all other pretrial dates adjusted accordingly.

The Court's Ruling

Judge Wettre was unmoved. In a brief text order entered on March 4, 2026, the court declined to issue a briefing schedule, stating that it "fully expects counsel to resolve amongst themselves issues about patent prosecution bars and the like without involving the Court."

The court did grant an extension for the parties to submit a fully consented-to DCO. But critically, Judge Wettre held that "no activities set by the scheduling order shall be stayed."

Instead, the court directed the parties to Local Patent Rule 2.2, which provides a built-in safeguard: pending entry of a DCO, all discovery and disclosures deemed confidential shall be produced for outside counsel’s Attorney's Eyes Only, solely for purposes of the pending case, and shall not be disclosed to clients or any other person.

Why Local Patent Rule 2.2 Matters

This outcome should not surprise seasoned DNJ practitioners. Local Patent Rule 2.2 requires parties to present either a consent DCO or any outstanding disputes within 14 days after the Initial Scheduling Conference. Because infringement contentions are typically due on the same timeline (see L. Pat. R. 3.1), and those contentions may contain confidential information, the rule anticipates the precise situation that arose in Radicava. Its Attorney's Eyes Only default ensures that the absence of an entered DCO does not become a bottleneck for early case activity. The rule further provides that "[d]iscovery cannot be withheld or delayed on the basis of confidentiality absent Court order."

Practical Takeaways

Judge Wettre's order carries two lessons for practitioners litigating in the DNJ.

First, DCO disputes will typically not slow down the case. Even where both sides consent to an extension, the court may refuse to delay contentions or other deadlines simply because the DCO has not been finalized. Parties should plan to meet all case deadlines regardless of the status of DCO negotiations, relying on the Attorney's Eyes Only default as a bridge until a final order is entered.

Second, do not expect the court to referee DCO negotiations. The court's language — that it "fully expects" counsel to resolve prosecution bar disputes "without involving the Court" — signals a strong preference for party-driven resolution.

Paul W. Kalish and Jonathan J. Madara are members of the IP Litigation team in Fox Rothschild’s Princeton, NJ office and write about patent litigation decisions in the District of New Jersey. Contact Paul at pkalish@foxrothschild.com or 609.895.6751 and Jonathan at jmadara@foxrothschild.com or 609.844.7428.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.