We got a good "what not to do" example today, relayed in an opinion by Judge Williams.
In the opinion, the Court addressed objections to a magistrate judge ruling on a privilege issue (remember—you can object to non-dispositive magistrate judge rulings in addition to R&Rs. Good luck.).
As the Court explained, the defendants initially argued to the magistrate judge that Third Circuit law governed, and that Federal Circuit law was grounded in the same principles as Third Circuit law anyway. The magistrate judge agreed:
In briefing submitted to the Magistrate Judge, Defendants state that, "Federal Circuit [law] does not differ [from Third Circuit law] in that it 'is grounded in principles of fairness. '" D.I. 224 at 3. The Magistrate Judge credited Defendants' argument to conclude Third Circuit law applies. See D.I. 232 at 3 n.2 ("Because Defendants themselves initially relied on Third Circuit caselaw here (as did Plaintiff) and because Defendants assert that the Third Circuit's approach to this issue is no different from that of the Federal Circuit, the Court will herein apply Third Circuit law regarding the 'at issue' doctrine to this patent case." ).
Then, in objecting to the magistrate judge's ruling, the defendants apparently reversed position, arguing that Federal Circuit law differed, and that the magistrate judge had erred by relying on Third Circuit law:
In their Objections, Defendants argue that the Magistrate Judge "errs by misapplying inapplicable Third Circuit law instead of applicable Federal Circuit law more analogous to this dispute." . . . Defendants now argue that the dispute is, bar none, governed by Federal Circuit law. See D .I. 23 7 at 3, 4 ("When the issue of a waiver of the attorney-client privilege is related to the substantive issue of inequitable conduct, substantive patent law is implicated, and Federal Circuit law applies ... To the extent the decision turns on the choice between Third Circuit and Federal Circuit law, the Order erred in disregarding decisions applying Federal Circuit law.").
The Court easily rejected the defendants' objections, noting that arguments need to be first raised with the magistrate judge:
Defendants offer no explanation to justify " dispensing with the rule that arguments need to be raised in the first instance with the Magistrate Judge," and, thus, the Court declines to dispense with that rule here.
So, yeah—it seems like I'm stating the obvious here, but don't argue one thing to the magistrate judge and then argue the opposite in your objections to the magistrate judge's opinion.
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