Too-Clever By-Half

Northbrook Digital, LLC v. Vendio Services, Inc.,

Case:          Northbrook Digital, LLC v. Vendio Services, Inc., No. 07-2250, 2008 U.S. Dist. LEXIS 45019 (D. Minn. June 9, 2008).
Status: Ready, Aim, Fire


Northbrook Digital sued Vendio Services for patent infringement. Vendio moved for a protective order, which the magistrate granted. Northbrook appealed the magistrate's decision to the district court and Vendio filed a response that exceeded the court's word limit. But Vendio promptly submitted a substitute response, which was fifteen words under the allowed maximum. The court found that the way in which Vendio reduced its word count "violated the spirit, if not the letter" of the word-limit rule: Vendio repeatedly hyphenated words that would not normally be hyphenated, omitted spaces from its citations, and referred to the magistrate judge by only her last name. The district court's disappointment was palpable: "This court cannot recall reading a motion, brief, or other paper...that referred to a federal magistrate judge by her last name only. No one does this because it is disrespectful to the magistrate. Surely one of the six lawyers at the three prestigious firms representing Vendio could have figured out a way to squeeze twenty words from a 3,500-word memorandum without being disrespectful."

BuLITS Points

  • Rule are rules. Cheap tricks designed to honor the letter while violating the spirit of the rule are bound to fail. 
  • Playing games with the court and its rules will only lead to a loss of credibility.
  • Get it right the first time! By ensuring that your submissions are within the word count, you will not have to scramble at the last minute, trying to eliminate words.
  • Always show the utmost respect towards judicial officers. These men and women decide your case-and will decide your future cases. Angering federal district court judges, who are appointed for life, can have practical and professional consequences.

And Remember

Clever lawyers never have the last word; judges always do.  Building rapport and respect with the court only helps your case. Pay attention to detail and take action with candor. If you find you've made an inadvertent misstep, correct it promptly, and in good faith. In Vendio, the court noted that it "makes plenty of inadvertent errors itself" and generally overlooks similar errors made by parties. A court will not, however, overlook game-playing or disrespect.  Every submission to the court is a shot at earning the court's trust. 

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