Tuesday, September 14, 2010

Judge Seitz Provides Counsel With "Teachable Moments."

Efficiency is Just Another Word                                                              
I happened to catch the Herald's review of Kendall Coffey's new book, and it looked pretty interesting so I picked up a copy.

I must say I found some of the text quite stimulating:
"Suddenly the pouting sex kitten gave way to Diana the Huntress. She rolled onto him and was somehow sitting athwart his chest, her knees pinning his shoulders. 'Tell me, or I will make you do terrible things,' she hissed."
Hey now!

Oh wait wait, my apologies.

That's not from Kendall's book, it's actually from a book by Newt Gingrich!


(This is what happens when you keep a few books going at one time.)

Sorry about that -- Kendall, your book is plenty stimulating too!

On to Judge Seitz -- here are a few choice snippets from the Judge regarding the plaintiff's motion to amend that I think offer guidance to all of us:
Moreover, ATT's case management approach thus far frankly guarantees that the proposed amendments or supplementations will unnecessarily delay the resolution of this case....

...ATT has not demonstrated that it has diligently undertaken its responsibilities to prosecute this case...
Presumably ATT's counsel spoke with its experts prior to agreeing to this deadline. In any event, it demonstrates a lack of diligence to wait until the due date, August 13, to advise the Court that the survey would not be completed in time that ATT committed to for disclosure.
Nonetheless, ATT's attempt to resurrect the dismissed claims via the proposed supplementation is somewhat akin to engrafting a horse onto a horsefly - if it doesn't smother the fly it will certainly ensure that it never flies.

The Defendant should not have to outlay additional resources in defending this action because ATT has just come to market with a new product and its lawyers have, on the last day for amendments, divined an admittedly creative attempt to try to circumvent a dismissal with prejudice.

Before proposing such a fundamental expansion of this presently streamlined case, ATT would do well to consider its obligations of pre-suit due diligence as well as think through a realistic litigation management approach that achieves the promise of Rule 1 of the Federal Rules of Civil Procedure, namely that civil actions and proceedings be administered to secure the just, speedy and inexpensive determination of every action and proceeding.
 And here's my favorite:
While ATT asserts that it would be inefficient to have ATT, CSI and PowerWave litigate these issues in separate suits, other than the fact that both ATT and Digital are parties in this action, ATT has provided no support for its efficiency argument as it applies to this lawsuit, rather than in a separate lawsuit. Indeed, just looking at the timing of the motion to amend, and then the shift to treating it as a motion to supplement plus the lack of consideration as to how the proposal will impact on others involved in the administration of this case, suggests that efficiency is only a buzz-word that counsel has employed rather than an apt description of an habitual approach to litigation.