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January 29, 2016 Practice Points

How Rule 1 of the 2015 Amended Rules Might Have Helped Litigants Avoid Admonishment

Sometimes the page limit is also the patience limit.

By Jarrad Wood

Sometimes the page limit is also the patience limit. On December 30, 2015, a judge in the Northern District of California strongly admonished both parties in Finjan, Inc. v. Blue Coat Systems, Inc for their failure to comply with the court's page limits. In its order, the court stated its "Baffle[ment]" at the parties "seeming inability to recall and comply with the Court's requirements in light of the fact that on occasion they have sought leave to file longer briefs and at times been reminded by the Court of those limitations." The court did not mince words. The order cited Blue Coat's "[s]hameless[]" and non-inadvertent decision to, after receiving a brief eight pages longer than permitted, to file a brief in opposition that was 15 pages longer than permitted.

Ultimately, the court balanced the interest of judicial economy against the interest in controlling its docket in favor of Finjan and against Blue Coat. Finjan requested that the court excuse its mistake as inadvertent or, in the alternative, to excuse both parties' violation of the court's page-limit order to "avoid wasting any further resources and advance this case on the merits[.]" While the court "appreciate[d] Finjan's desire to move the case along efficiently," it found it necessary to sua sponte sanction Blue Coat for its violation of the court's order. In the interest of judicial economy, the court excused Finjan's violation. Finding Blue Coat's 25-page motion to strike Finjan's 10-page motion for exceeding the page limit to be non-inadvertent, and hypocritical, the court struck Blue Coat's motion and ordered that it refile a brief of no more than 18 pages.

While certainly an object lesson on the importance of complying with express court orders, the order in Finjan may also be instructive on how Rule 1 of the 2015 Amended Federal Rules of Civil Procedure can and will apply in intellectual property litigation. Rule 1 provides that the rules "should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding." The committee note clarifies that it has been amended to emphasize the "share[d] . . . responsibility" of the parties and the court to ensure a "just, speedy, and inexpensive determination of every action." To that end, the committee note continues, "[e]ffective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure."

It remains unclear whether the parties in Finjan would have avoided the court's frustration if they had made greater efforts to "cooperative[ly] and proportional[y]" ensure a "just, speedy, and inexpensive determination" of the issue. Nonetheless, it is not unreasonable to believe they would. Intuitively, a 10-page brief is more "just, speedy, and inexpensive" than an 18- or 25-page brief. In the future, litigants may take a page out of Finjan's book—and take a page out of their own.

Jarrad Wood is with Unified Patents in Washington, D.C.

The views expressed in this article do not necessarily represent the views of the Court, or the D.C. government.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Jarrad Wood – January 29, 2016