R&R objections can be a minefield for attorneys. First, the governing rules are fairly stringent, and are set forth in multiple places (including Local Rule 72.1 and a separate standing order). Second, I think it's fair to say that most judges are not eager to have to review another judge's work and potentially reverse it if they don't have to, so the rules for objections tend to be enforced.
Here are some examples of things that parties sometimes miss. The objecting party must:
- "[S]pecify the portions of the findings and recommendations to which objection is made and the basis for each objection, . . . supported by legal authority."
- Include a certification stating that "the objections do not raise new legal/factual arguments" or identifying good cause for new legal/factual arguments.
- Set forth its objections in a single, 10-page opening brief with no reply brief, and the page limit is generally strictly enforced.
- File courtesy copies of "of all filings (e.g., motions, briefs, appendices) associated with the matter to which the R&R"—this can be easy to miss, and can result in waiver.
- Identify the exact standard of review.
That last one, identifying the standard of review, is easier said than done. The standard of review for R&R objections can be tricky, because multiple standards may apply depending on the nature of the ruling.
What happens if you fail to identify the legal authority and the standard? We found out yesterday—complete and instant waiver:
Local Rule 72.1(b) provides that "[o]bjections to an order, decision or recommendation disposition made by a Magistrate Judge pursuant to Fed. R. Civ. P. 72 shall identify the appropriate standard of review." D. Del. LR 72.l(b). Google does not identify in its objections any legal standard or authority, let alone identify the appropriate standard of review. (Saying that the "Order is clearly erroneous," D.I. 741 at 1, does not identify the appropriate standard of review.)
NOW THEREFORE, at Wilmington on this Fourth day of April in 2023, Google's "Objections to the Magistrate Judge's Memorandum Order Regarding Motion to Preclude Expert Testimony as to 'Sequencing File' Limitation (D.I. 720)," D.I. 741, are DENIED.
Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC-CJB (D. Del. Apr. 4, 2023).
So yeah. Don't forget to double-check all of the rules next time you have an R&R objection, and maybe refer back to this post to cross-check that you haven't missed anything!
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