How, in the 8,000 year history of law, have we not come up with a better name than the "at issue" doctrine? I hesitate to call it the shame of our profession, but it's firmly in the running.
I pose some alternatives below. To make it clear, any highlighted words refer to the doctrine formerly known as "at issue." Feel free to use going forward -- creative commons or whatever.
This Will Go On For Longer Than You Think
Judge Burke had an interesting case regarding the sneaky peak doctrine. In Sensormatic Electronics, LLC v. Genetec (USA) Inc., the issue arose in the context of an inequitable conduct allegation, where defendants sought evidence about what exactly plaintiffs' prosecuting attorneys were thinking when they allowed an application to be abandoned before later reviving it. Plaintiff, unsurprisingly, refused to provide any communications with the relevant attorneys, claiming privilege.
The just putting it out there doctrine came up when plaintiff filed a motion for summary judgment on the inequitable conduct claims and included a statement of facts regarding its attorneys' state of mind during the relevant period. According to defendants, these statement filled the cannoli and pursuant to that doctrine, the withheld documents must be produced.
Longer Than You Hope
Judge Burke disagreed. Instead he held that general statements about what various attorneys thought -- without citation or reference to the withheld communications -- was insufficient to invoke the hoisted on their own petard doctrine.
Interestingly, however Judge Burke did find one statement where the plaintiffs appeared to wake the baby by referencing an "inquiry" one of the attorney's made. Ultimately, however, he held that this statement was insufficient to cause waiver because the actual brief never cited to that particular statement of fact. The doctrine of you take the good, you take the bad, you take them both, and there you have, simply will not stretch so far.
Longer Than You Fear
You can understand why the defendants felt that these statements were sufficient to jiggle the lock. In the normal course, when a party makes a statement, you can test it against the various relevant documents that might support or contradict it. But alas, that's the way of the bundt pan doctrine -- it never gets as much use as you think it will.
[This post has been corrected to reflect that the opinion was authored by Judge Burke, rather than Judge Williams.]
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