As we've previously discussed, the D. Del. local rules prohibit a party from reserving arguments for a reply brief that "should have been included in a full and fair opening brief" (LR 7.1.3)—a practice commonly referred to as "sandbagging." This rule has real teeth, and failing to follow it can result in strong arguments being ignored altogether.
That's what happened on Monday in a summary judgment R&R from Magistrate Judge Burke. In addressing an invalidity motion that turned on a disputed priority date, Judge Burke found that this was "a disputed issue of fact" and recommend denial.
In addressing one of the defendant's arguments, though, he noted that the defendant raised a stronger argument in its reply brief:
In its reply brief, ClearOne put forward an additional, more nuanced argument regarding this issue. . . . While it is possible that this argument may be a good one for ClearOne, the Court will not consider it here because it was not fairly raised in ClearOne’s opening brief (at least certainly not in the nuanced way that it was described in ClearOne’s reply brief).
We'll never know if this "additional, more nuanced argument" would have carried the day. But what we do know is that the D. Del. judges take this rule seriously, and failing to follow it could very well result in waiver.
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