August 22, 2018 Practice Points

Abusive Briefing: Motions, Responses, and Replies—Oh, My!

By Kevin Underhill

The first sign of approaching disaster was a motion asking for leave to exceed the page limit.

The standard limit in the District of Nevada is 24 pages, which, though oddly specific, is perfectly reasonable. On April 13—a Friday—the plaintiff in V5 Technologies v. Switch asked for leave to file 108. To be fair, this was a motion to compel, and a local rule requires all relevant questions and answers to be included in the brief. The plaintiff said it couldn’t do that and also fit everything into 24 pages. The judge said fine, just attach that stuff instead. (She perhaps did not fully appreciate that this meant that the plaintiff would be griping about 84 pages’ worth of questions and answers.)

The disaster itself began to unfold the following week, when the plaintiff filed the motion. It was, inexplicably, two lines over the 24-page limit and had 434 pages attached, not 84. The defendants’ response was only about 15 pages long but had 600 pages of exhibits. The plaintiff then filed a reply. All fairly standard, to this point.

But here is where things started to go off the rails a bit. The defendants filed a motion for leave to file a surreply. Now, the “motion for leave” usually is the surreply because you’re saying, “Here’s what I’d file if you let me, your Honor. See how persuasive it is.” She agrees or she doesn’t agree. So it isn’t really a separate motion in the usual sense. You don’t fully brief it. But maybe you do in the District of Nevada because the plaintiff responded. That is, the plaintiff did not want the defendants to file a surreply, and so the plaintiff responded to the defendants’ motion to file one. And the defendants filed a reply.

And because you’ve almost certainly lost track already, I point out that this was not just a reply. It was a reply to a response to a motion for leave to file a surreply to the plaintiff’s reply to the defendants’ response to the plaintiff’s motion to compel. Ridiculous, right? Yes!

This is why the plaintiff filed a motion for leave to file a surreply to that—which, my friends, was a motion for leave to file a surreply to the reply to the response to the defendants’ motion to file a surreply to the plaintiff’s reply to the defendants’ response to the plaintiff’s motion to compel.

Apparently recognizing that this had become completely insane—but also apparently unable to stop filing things—the defendants filed a “nonopposition.” This explained that the defendants did not oppose this motion for leave to file a surreply, but they did not necessarily agree with the factual representations therein. How this could have aided the cause is unclear.

Meanwhile, an only slightly less ridiculous drama was playing out in the other direction. The plaintiff had served subpoenas, and, on June 20, the defendants moved to quash. The plaintiff responded, and the defendants replied. Then the defendants replied again, filing a corrected copy, or possibly filing a different document that they meant to file the day before, which suggests that they, too, had completely lost track of what was going on. Apparently taking great offense at this, the plaintiff, on July 18, filed a motion to strike the corrected reply, to which, of course, the defendants would have to respond.

At this point, the judge had finally had enough. “The Court has indulged the parties’ abusive litigation tactics for long enough,” she wrote in a July 19 order. She noted that in addition to “[t]he eight briefs filed in conjunction with the motion to compel,” there were already four briefs on the motion to quash, and so it appeared that the parties had “begun the same briefing odyssey on the motion to quash that they charted on the motion to compel. . . .” The court declined to go with them. “Given the mess that the parties have made,” she wrote, the court would not consider anyof the papers that they had filed. Instead, she ordered them to work together, in a “civil manner,” to file joint statements, on which the court would rule. “The Court will not allow any supplementation,” she added, just to be clear.

I have counted the number of pages that were written, rewritten, printed, scanned, and/or filed by the lawyers during this titanic struggle; and, including exhibits, that number is 1,749—not a single page of which will be considered by the court or, in all likelihood, ever viewed again by any human being during the remainder of our species’ time on this planet.

Of course, each and every page probably seemed important at the time.

 

Kevin Underhill is a partner at Shook, Hardy & Bacon L.L.P. in San Francisco.


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