Delaware Chief Judge Uses Prosecutor’s Edge in IP Funding Probes

Colm Connolly stood among mountains of garbage, watching through the August rain as an excavator combed the rotting trash for clues.

The young federal prosecutor had a murder to solve.

Connolly suspected that somewhere in the refuse heaped in a Wilmington, Delaware, landfill, he might find enough evidence to arrest and convict Thomas Capano, a prominent lawyer, for killing his mistress. Anne Marie Fahey, the governor’s scheduling secretary, had disappeared without a trace, in a mystery that gripped Delaware.

Connolly, then an assistant US attorney a few months shy of his 32nd birthday, dug through soggy bags of trash, using the dates on crumpled newspapers to narrow the scope of his search.

When Connolly got home on that summer day in 1996, his mother-in-law told him to get rid of the stench-soaked clothes he’d been wearing.

“It smelled vile,” he recalled in a recent interview in his fourth-floor chambers at the US District Court for the District of Delaware, where he’s now chief judge. The landfill’s peaks are visible from the panoramic windows in his office.

First as a prosecutor and now as a judge, Connolly, 58, is known as a tenacious investigator intent on getting to the bottom of murky details—even if he has to apply some muscle to do so.

“He would do everything that was available to him within the law,” said Eugene Maurer, one of the attorneys who defended Capano. “He was very good about going up to the line but not crossing it.”

These days, Connolly digs through mountains of documents in one of the nation’s busiest venues for patent-infringement cases.

He’s become determined to uncover the entities who are really funding and controlling a raft of such suits brought by limited liability companies with opaque origins. Connolly worries that such entities—and, at times, the lawyers representing them—aren’t being upfront about who is really spurring the litigation.

In orders governing all cases in his court, and in others specific to certain disputes, Connolly has pushed parties to provide details that many courts require but rarely enforce—or that go deeper than what’s typically required.

The disclosures lay down an important benchmark for other courts, said Arti Rai, a Duke Law professor who moderated a panel discussion on patent litigation with Connolly last year.

“Together with judges in districts like New Jersey, Judge Connolly is setting an exemplary standard for transparency in the litigation system,” Rai wrote in an email.

His insistence on transparency has drawn the ire of LLCs that flood the court with patent-infringement lawsuits, aiming to secure quick monetary settlements.

In a 78-page defense last November of his “inherent authority” to enforce his requirements, Connolly floated whether such entities have “perpetrated a fraud on the court” by transferring patents to “a shell LLC” and “filing a fictitious patent assignment” with the US Patent and Trademark Office in order to shield themselves from potential liability for asserting frivolous claims.

The judge’s handling of the investigation is reminiscent of his unrelenting approach as a prosecutor.

“A lot of times you don’t see where he’s coming from, but he’s always got a plan and a purpose behind what he’s doing,” Maurer said.

Piercing Veils

Connolly has brought the aggressive style of a prosecutor to patent cases, and it has earned him his share of critics.

One lawyer representing Nimitz Technologies LLC, an affiliate of IP Edge LLC—the Texas-based patent-assertion entity at the heart of Connolly’s investigation—referred to Connolly in court documents as an “adversary.” The attorney, George Pazuniak, also called Connolly’s probe a “judicial inquisition” that seeks to access privileged information irrelevant to the cases.

“The disclosure is not for the purpose of determining whether privilege applies,” Pazuniak wrote in another filing, “but for purposes of using the attorney client communications in an investigation of Nimitz.”

Several attempts by Pazuniak and other lawyers to halt the investigation of their clients have failed. And Federal Circuit panels have refused to end Connolly’s search for details, ruffling feathers among some practitioners in his court.

Connolly is prone to speaking directly and forcefully, which can throw practitioners off-balance during otherwise routine proceedings, but he takes care with his choice of words. Silence punctuates his most urgent statements, as it did during the investigation’s first evidentiary hearing in November.

Before Nimitz’s owner, Mark Hall, took the stand, Pazuniak asked Connolly to seal the courtroom. The lawyer, of O’Kelly & O’Rourke LLC, said there were “matters of personal privacy” to consider and “business arrangements that are not public.” Connolly denied the request.

“I don’t know how I can possibly preside over this case without knowing who the parties really are in front of me,” Connolly said.

‘Crushing’ Caseload

Confirmed to the district of Delaware bench in August 2018, Connolly inherited one of the nation’s busiest patent courts when he took the helm as chief judge in July 2021.

“Here, we are drinking out of a fire hose,” Connolly said of his court’s caseload. “You can never get through the work here. Ever. It’s absolutely crushing.”

A self-professed language nerd who studied classical liberal arts and “great books” at the University of Notre Dame, Connolly often pauses mid-sentence during conversations to correct his own grammar. Most of the frames on the walls of his chambers hold images from national parks, but one features an enlarged entry from Garner’s Modern English Usage for the word “which”.

The same penchant comes out in Connolly’s writing. In an order he issued in March in a patent-infringement case, Connolly parsed the grammar and syntax in competing proposals for one disputed patent claim term: “tangent.”

Among his most notable patent-related opinions is a September 2021 decision in a case over patents related to organ-transplant rejection tests that CareDx Inc. licensed from Stanford University. Connolly chose to revisit his own ruling from the previous December that denied requests to void three patents at play in separate suits against two defendants.

“The patentee’s unequivocal and binding admission in the written description that the recited detection methods are conventional ends the matter before me,” Connolly wrote in the opinion, referencing the patents’ failure to meet criteria necessary to uphold their validity.

Connolly’s not shy about borrowing ideas for court management when he sees a model that works. He fashioned his summary judgment procedures after the District of Hawaii and said his standing orders requiring corporate and third-party funding disclosures are not unique.

The judge says he has “no tolerance for misrepresentation” of the facts in any case. As Connolly sees it, secrecy in litigation should be reserved for a few rare instances, such as national security or grand jury proceedings.

That’s why he insists that parties must explain why they want to keep corporate information secret. The courts are not litigants’ “personal fiefdom,” Connolly says.

Making a Case

Connolly’s distaste for corporate secrecy also stems from his time at the US Justice Department, where, he said, it was nearly impossible to seal a courtroom or prevent evidence from being made public.

Connolly first put his prosecutorial skills on display as an assistant US attorney, orchestrating the investigation and eventual conviction of Capano for first-degree murder.

Connolly was the architect of the case from the start, recalled Maurer, the Capano lawyer. His vision started with empaneling a grand jury to recommend charges, and included a search of a Capano brother’s home that ultimately turned him into a witness for the state.

“That was all Connolly’s doing. He basically, in my view, single-handedly broke the case,” Maurer said. Connolly, he added, “did it with very, very aggressive but not illegal tactics.”

For example, Connolly put Capano’s teenage daughters on the witness stand and wasn’t “all that kind to them” during questioning, Maurer said.

While combing Capano’s credit card records, he noticed that the politically connected lawyer had recently bought a new Oriental rug. That prompted him to revisit Capano’s housekeeper, who recalled that an old rug and couch had been removed around the weekend when Fahey vanished.

That led the prosecutor and a small team of police to the landfill, one of two they searched. The efforts didn’t yield the sofa or the rug, but Connolly had amassed enough evidence to get a warrant to search Capano’s home. There, they found trace amounts of blood that ultimately matched Fahey’s.

Her body was never found. Neither was a weapon.

But Connolly convinced a jury to convict Capano in January 1999 of first-degree murder on the evidence he had developed. Capano died in prison in 2011.

The case inspired a two-part, made-for-TV movie, 2001’s “And Never Let Her Go,” in which the actor Steven Eckholdt played Connolly. The real Connolly was a technical consultant and made a cameo appearance.

‘Relentless Pursuit’

A Wilmington native, Connolly, 58, spent his first two years of high school at Archmere Academy, the prestigious Catholic school Capano had attended years earlier.

Connolly was a procrastinator as a college student, he says, but was persistent in courting his now-wife, Anne, when they were fellow Duke Law School students.

Anne initially “rebuffed his advances,” according to a 1999 profile in a Wilmington newspaper. “I won her over with relentless pursuit,” Connolly joked to the paper.

Judge Richard G. Andrews, on the bench since November 2011, has known Connolly since the early 1990s, when both were lawyers at the US attorney’s office. He recalled the young Connolly as “straightforward, enthusiastic, hard-charging,” and “pretty relentless.”

The two first met while playing basketball in a local lawyer’s league.

“He would take the long shots,” Andrews said.

In 2006, when Capano’s murder conviction was still relatively fresh in the minds of Delawareans, Connolly helped orchestrate a campaign to stop Archmere from naming a building after the Capano family in exchange for a $1 million pledge.

Connolly appealed to Archmere’s headmaster, a former headmaster, board members—even the diocese’s bishop. Only after national and local media picked up the story did Archmere relent.

Connolly, who had received an honorary degree from Archmere, hasn’t had a relationship with the school since.