As the wise man said, pobody's nerfect. Although it may be hard to fathom, even I dear, reader have made a typo once or twice. I recall clearly the last time, it was autumn of 2003 . . .
(Eds. Note -- he goes on like this for a while, so I cut it out. his actual last typo was in this blog on Tuesday.)
Even in the law this is usually no big deal -- you realize you submitted the wrong exhibit Q, or you forgot the signature line, or whatever, and as long as you catch it early it tends to be fixable with a call to opposing counsel and the clerk's office. Frequently, the other side won't even fight you on it as long as the mistake doesn't cut into their time to respond to the new version. Indeed, I can't remember ever seeing actual motion practice on something like this.
Until this week! On Monday, Judge Bryson issued a Memorandum Order in Xin Wang v. Injective Labs Inc., C.A. No. 22-943-WCB (D. Del. Apr. 28, 2025) that dealt with just such an error. The plaintiff there had moved for summary judgment, and attached a factual declaration (from the plaintiff) in support. Unfortunately, he'd accidentally attached an unrelated declaration he'd filed in support of an earlier motion.
Apparently the error was discovered about 6 days later, and a swap was proposed to defendant. Apparently defendant would not agree to the substitution and so motion practice ensued. Judge Bryson, granted the motion just a few days after it was filed:
I conclude that there would little, if any, prejudice to Injective by allowing Mr. Wang to make the substitution. First, Injective’s response to the proposition for which Mr. Wang cites his declaration will presumably be consistent with the arguments that Injective has made in its opposition to the present motion . . . Accordingly, it appears that in the course of preparing its opposition to the present motion Injective has already completed much of the work that will be required to respond to the new declaration. Additionally, the declaration is not featured prominently in Mr. Wang’s motion for summary judgment, and the only proposition for which it is cited is seemingly a minor one. Furthermore, the declaration does not change the substance of Mr. Wang’s argument; it merely changes the specific record references supporting the argument. Finally, although Injective accuses Mr. Wang of bad faith in his delay, and although Mr. Wang has demonstrated a pattern of tardiness in this litigation, there is nothing to support a finding of bad faith in this instance. Mr. Wang would have had little to gain from intentionally submitting an inapposite declaration and then, with a week still to go in the time for Injective to respond to Mr. Wang’s motion, seeking to switch the declarations so as to gain a tactical advantage over Injective. . . . In sum, I find that there is no significant prejudice to Injective from allowing the substitution, so I will grant the motion to substitute the April 18, 2025, declaration for the previously filed declaration dated March 25, 2024
If you, like me, are wondering how obvious it was that this was the wrong declaration -- I don't know! all the briefing on this is still sealed for some reason. I'll let you know when I find out.
Aside from that, this is pretty much exactly how I would have expected this to play out, with the Court preferring to decide the issue on the merits rather than punishing a litigant for an apparent clerical error. The only somewhat surprising twist is that the Court didn't extend the briefing deadline at all for the defendant to respond to the new declaration. So this may well be a case where the defendant would have been better off just agreeing to the substitution in exchange for a few extra days to respond, rather than going through the hassle of motion practice.
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