Benchslaps, Biglaw, Federal Judges

Untimely ‘Joint’ Filings Result In Very Timely ‘Joint’ Benchslap

People can be so unreliable. Especially if those people are Biglaw litigators in a high-stakes intellectual property dispute. With a scheduling order set months in advance, with no warning as to the volume of disagreement, these lawyers dumped “joint” pretrial filings “so rife with disputes that the documents amount to two separate proposals” and a metric tonne of motions on the court to resolve in two weeks.

Scratch that. With less than two weeks, because they filed all this late. Oh, and they filed a bunch of them redacted and under seal without permission, just for good measure.

If that would make you a very angry judge willing to rip both sides for posterity, you wouldn’t be alone….

Enzo Biochem v. PerkinElmer, are suing over patented nucleotide labeling technologies, which sounds super sexy. Per the scheduling order issued back in November, the parties were to make pretrial filings on March 4, with a trial slated for March 18. Attorneys from Greenberg Traurig and WilmerHale earned the ire of Judge Richard Sullivan with their highly contentious “joint” pretrial filings, including a mostly disputed pretrial order, multiple motions in limine, multiple expert challenges, and more.

Given the volume of disputed issues, the parties could have written the judge and asked to change the scheduling order. Or they could arrogantly assume the judge would clear his schedule completely for two weeks to deal with all this stuff. The parties chose the latter. They chose poorly:

A brief perusal of these materials reveals that even if the Court were to give its undivided attention to this case for the next two weeks, it is unlikely that it could wade through this barrage of materials – the vast majority of which is hotly contested – and resolve the parties’ improperly filed and poorly-articulated submissions in time for the March 18, 2014 trial date.

Putting aside the volume, Judge Sullivan was peeved at the untimely nature of the filings. Now the more permissive may not feel the submissions were really all that late, coming the morning after they were due. First, screw that noise. Get your job done on time. Second, it’s not really a mere one day delay because:

For starters, many of the memoranda filed in connection with the above-referenced motions are heavily redacted, and in some instances, electronically filed under seal. Notwithstanding the fact that the parties failed to seek the Court’s permission to file their submissions in such manner, the Court has yet to receive unredacted versions of these filings, either in electronic format or hard copy.

D’oh. Not to channel the movie trailer guy, but in a world where motions are filed after the deadline, a lawyer had best hope those filings are perfect and the judge has no reason to complain about the mild breach of protocol.

Similarly egregious, the proposed joint pre-trial order includes hundreds of objections to what appear to be many hundreds of exhibits, though the Court cannot know for sure because the exhibits are not numbered.

Of course not.

In light of this, what does Judge Sullivan think of the litigation savvy of Greenberg Traurig and WilmerHale?

In short, it is abundantly clear that the parties are not ready for trial, and that they have little grasp of what is required to get the case to such a posture.

Benchslap concluded.

The full benchslap is available on the next page….

(hidden for your protection)

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