Giving Thanks by Omission

Many people this time of year give thanks for something that has happened in their lives. In typical lawyer fashion, I am instead giving thanks for things that have not happened in my professional life.

For instance, I am thankful that thus far something I said in a deposition has not been used to support an order for sanctions, like Biovail Labs., Inc. v. Anchen Pharm., Inc., 233 F.R.D. 648 (C.D. Cal. 2006). Normally I post excerpts from the opinion but there are just too many.

I am also thankful that a judge thus far has not described a brief I wrote like this:

It is not the court’s job to laboriously search the operative complaint, which is 153 pages, or First Option’s answer for claims and defenses that could be used to support First Option’s motion to compel. Northwestern Nat’l Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994) (“District judges are not archaeologists. They need not excavate masses of papers in search of revealing tidbits.”).

Eruchalu v. U.S. Bank, 2014 U.S. Dist. LEXIS 127974 (D. Nev. Sept. 12, 2014). Or like this:

Rather than directing the court to the relevant law and its impact on specific discovery requests, U.S. Bank repeatedly states that “[t]he pleadings and paper on file in [the Nevada state court action, bankruptcy action, adversary action, and appellate action] are incorporated herein by this reference.” This is insufficient. It is U.S. Bank’s burden— not the court’s duty—to research the controlling law and determine how the law of each related case impacts Eruchalu’s voluminous discovery requests.

Id. Or this:

However, plaintiffs have simply attached defendant’s prior discovery responses as exhibits, without including a copy of their own interrogatories and request for production of documents. In addition, plaintiffs do not bother to link their arguments to the complete text of requests and to defendant’s specific discovery responses, and make no effort to address various other objections served in response to plaintiffs’ requests. Plaintiffs appear to be operating under the misconception that it is the judiciary’s responsibility to sift through scattered papers in order to identify viable claims and to manufacture arguments for parties. The Court dispels plaintiffs’ misconception with this order.

Mumford v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 149868 (D. Nev. Oct. 21, 2014).

Enjoy the holiday!