Picking and Choosing Your Battles in the ED Tex.

Blackboard, Inc. v. Desire2Learn (9:06-CV-00155) December 3, 2007

Heading into summary judgment, Judge Clark let the parties know that, when it comes to choosing issues to argue before the court, less can be more in most cases:

The parties in this case have, between them, filed 48 motions, responses and replies in less than 14 months, which, including attachments and exhibits, comprise no fewer than eleven thousand pages. They seem to share the misconception, popular in some circles, that motion practice exists to require federal judges to shovel through steaming mounds of pleonastic arguments [heh, heh] in a Herculean effort to uncover a hidden gem of logic that will ineluctably compel a favorable ruling. Nothing could be further from the truth.

In the context of a motion for summary judgment, for example, it is counsel's responsibility to hone in on the precise dispositive elements of a case, concerning which "there is no genuine issue as to any material fact" . . . If an opponent's case is so weak that a wide choice of dispositive arguments is available, it should be easy to choose one or two of the best. Inundating the court with a veritable smorgasbord of issues from which to choose leads to the conclusion that a party is unable to articulate clear grounds for judgement as a matter of law.

Apparently, things didn't get better when it came time to deciding the motion. When Desire2Learn submitted to the court a listing of all pending dispositive motions in the case, as well as associated responses, replies, and sur-replies, the court took great exception to the fact that the "grand total" of pages for the 24 documents exceeded 8000 pages. Noted the court:

Based on an eight hour, five day work week, even if the court had devoted all of its time between October 4 and November 30 to the task, it would still have had to read more than 25 pages an hour in order to burrow through the mountain of motions generated by the parties.

Having had enough from both sides, Judge Clark denied all pending motions for summary judgment:

[E]very time the court attempts to delve into the substantive issues of the six dispositive motions filed by the parties between October 4 and October 224, it is almost immediately distracted by another discovery dispute or petty squabble over page limits.

Therefore, in order to secure the just, speedy and inexpensive determination of this action pursuant to Fed. R. Civ. P. 1, the court will deny all pending motions for summary judgment. Counsel on both sides are certainly skillful enough to focus the jury’s attention on the key issues at trial, where the main disputes between the parties can be fully aired. Disposing of these motions in this manner will also free the court to devote the necessary time and attention to the pre-trial motions which will almost certainly be forthcoming, as well as the still-pending Motions to Strike and Compel.

View order striking motion for exceeding page limitations (link)

View order denying summary judgment (link)