Attorneys in Action

Defendants File Non-Opposition to Plaintiff’s Motion for Leave to File Surreply to Motion for Leave to File Surreply

As is so often the case, the first sign of approaching disaster was a motion asking for leave to exceed the page limit.

The standard page limit for motions filed in the District of Nevada is 24 pages, which is oddly specific but perfectly reasonable. On April 13—a Friday—the plaintiff in V5 Technologies v. Switch asked for permission to file 108 pages. To be fair, this was a motion to compel discovery, and a local rule says you have to include, verbatim, all the answers you think were insufficient and the questions you asked to begin with. Plaintiff said it couldn’t do that and also fit everything into 24 pages. The judge said fine, just attach the questions and answers instead.

She perhaps did not fully appreciate that this meant Plaintiff would be griping about 84 pages worth of questions and answers.

The disaster itself began to unfold the following week, when Plaintiff filed the motion itself. It was, inexplicably, two lines over the 24-page limit (you couldn’t find two lines to cut? really?), and for some reason (I didn’t read it) there were 434 pages attached, not 84. Defendants’ response to the motion was only about 15 pages long, but had 600 pages of exhibits. Plaintiff then filed a reply to the response. All fairly standard, except maybe for the exhibits.

But here is where things started to go off the rails a bit.

See, normally there is a motion, a response, and a reply. That’s it. Each side gets to make its arguments, and the moving party gets the last word. There is such a thing as a surreply, or a reply to the reply. But they’re rarely justified, which is why you need the judge’s permission to file one. Almost always, the standard briefs are enough. Usually more than enough.

But here, Defendants filed a motion for leave to file a surreply. Now, the “motion for leave” usually is the surreply, basically, because you’re saying, “here’s what I’d file if you let me, your Honor, see how persuasive it is.” She agrees or she doesn’t agree. So it isn’t really a separate motion in the usual sense. You don’t fully brief it.

But maybe you do in the District of Nevada, because Plaintiff responded. That is, Plaintiff did not want Defendants to file a surreply, and so Plaintiff responded to Defendants’ motion to file one.

Then Defendants filed a reply. And because you’ve almost certainly lost track at this point, let me remind you that this was not just a reply. It was a reply to a response to a motion for leave to file a surreply to Plaintiff’s reply to Defendants’ response to Plaintiff’s motion to compel.

Ridiculous, right? Yes!

Which is why Plaintiff filed a motion for leave to file a surreply to it.

A motion for leave to file a surreply to the reply to the response to Defendants’ motion to file a surreply to Plaintiff’s reply to Defendants’ response to Plaintiff’s motion to compel.

Just a part of the nightmarish hellscape this discovery dispute became

Surely Defendants would not respond to that. Would they? Well, no.

But sort of. Apparently understanding that this had become completely insane, but also apparently unable to stop, Defendants responded with something they called a “non-opposition.” Defendants explained that they did not in fact oppose this further motion for leave to file a surreply, but wished to point out to the court that it contained many inaccuracies. Okay then, thanks for that.

Meanwhile, an only slightly less ridiculous drama had begun to play out in the other direction in the same case. Plaintiff had served subpoenas on Defendants, and on June 20, Defendants moved to quash those subpoenas. Plaintiff responded, and Defendants replied. Then Defendants replied again, filing a corrected copy of the previous reply, or possibly filing a different document they meant to file the day before, which would suggest they too had completely lost track of what was going on. Apparently taking offense at this, on July 18 Plaintiff filed a motion to strike the corrected reply, to which, of course, Defendants would have to respond—

—at which point the judge had finally had enough.

“The Court has indulged the parties’ abusive litigation tactics for long enough,” she wrote in a July 19 order. She noted that in addition to “[t]he eight briefs filed in conjunction with the motion to compel,” there were four briefs at that point relating to the motion to quash, and it thus appeared that the parties had “begun the same briefing odyssey on the motion to quash that they charted on the motion to compel….” The court declined to go on that odyssey with them. “Given the mess that the parties have made,” she wrote, the court was not going to consider any of the papers they had filed. Instead, she ordered them to work together, “in a cooperative, civil manner,” to file two joint statements, one for each dispute, on which the Court would rely in order to make its rulings.

“The Court will not allow any supplementation,” she added in a footnote, just to be clear.

As part of the public service I provide, I have counted up the number of pages that were written, rewritten, printed, scanned, and/or filed by the lawyers during this titanic struggle, and, including exhibits, that number is 1,749. Not a single page of which will be considered by the Court or, in all likelihood, ever viewed again by any human being during the remainder of our species’ time on this planet. Perhaps eons hence some member of an alien race picking through our ruined archives will come upon it, and hurt its brain parts trying to figure it out.

At least then these briefs would serve some purpose. Because get out of our archives, alien! Serves you right.