So much in our world is phrased in dire, and certain, terms. "No Running," "High Voltage," "Angry Birds"—
It can be hard to differentiate between those warnings that are merely distant precautions (check engine), and those that represent an understanding of a dark and heartless fate (again, angry birds). An example may help to illustrate this point.
I give you the following passage in Judge Connolly's form scheduling order on the use of pincites:
Pinpoint citations are required in all briefing, letters and concise statements of facts. The Court will ignore any assertions of uncontroverted facts and controverted legal principles not supported by a pinpoint citation . . .
Scheduling Order [Non-Patent Case], Para. 4 (Rev. March 2, 2020)
Looking at that, one might think there was some wiggle room. One would be incorrect.
We know this courtesy of a recent teleconference in In re: Seroquel XR Antitrust Litigation, C.A. No. 20-1076-CFC (D. Del. Oct. 4, 2023) (Hearing Tr.). One of the plaintiff groups had submitted briefing in support of their motion for cert and attached 466 pages of expert reports without any pincites. The defendants filed a later complaining about the issue as well as the general attachment of entire reports and transcripts rather than exhibits.
Judge Connolly then held a conference on just the pincite/exhibit issue where he questioned Plaintiffs' counsel (one of many, this one in particular represented the "end payors") counsel on the lack of pincites:
PLAINTIFFS' COUNSEL: . . . the reason that we don't have a pinpoint cite there is because that information is contained in the expert reports in general. . . .But I will also point out to Your Honor --
THE COURT: Actually, before you do, I'm striking it. You cannot expect a judge to read 466 pages that you don't bother to put a specific citation in your brief.
PLAINTIFFS' COUNSEL:: Your Honor, can I just elaborate a little bit more before you --
THE COURT: No, you can't. I gave you the chance. You just told me it's for this general proposition and you expect me to read 466 pages. They're struck.
PLAINTIFFS' COUNSEL:: We don't expect you to --
THE COURT: That is unbelievable. So you want to say anything else, go ahead.
PLAINTIFFS' COUNSEL: I would like to add, Your Honor, that we did highlight those reports so you can go through them and see exactly the portions that we think are -- you can look at in order to address these points.
THE COURT: Yeah, no. They're struck. . .
Id. at 13:17-14:22.
I feel bad, but I honestly laugh every time I get to the "--". Can't you just hear it?
Judge Connolly also had some interesting rulings on the inclusion of entire exhibits, rather than excerpts (his scheduling order is less definite on this point, merely encouraging the use of excerpts). Defendants had complained about this practice as well, citing the difficulties it presented to the Court as well as the significant work involved in redacting thousands of pages of uncited exhibits. Plaintiffs (a different group from the end-payors, whose name I honestly don't recall) countered that any difficulty in redaction was caused by the defendants own over-designation of discovery materials.
Judge Connolly recognized that both sides positions had something to commend them (of particular note, he stated that he preferred not to receive 3 copies of exhibits with different highlights), and ultimately settled on a Solomonic compromise:
plaintiffs, what I'm a little worried about is that, that you are -- you are filing way too much paper in support of your briefs and you're unfairly burdening the defendant. But what I'm going to do is, I'm going to just reserve the right -- I guess I don't have to reserve it, but just let plaintiffs know, look, I've given you now the opportunity, if you want it, to refile. And if you don't want to avail yourselves of that opportunity, I may actually require folks to pay, on the plaintiff's side, for whatever it took the defendants to engage in redacting, okay?
Id. at 27:13-28:02
It'll be interesting to see how this whole thing shakes out. We'll keep you posted!
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