Being a litigation attorney can be a scary business. You’re constantly thinking about how to organize the facts to fit your theory of the case, what legal precedent you may have overlooked, discovery, trial preparation and much, much more.
With all that pressure it’s not surprising that lawyers make mistakes, and one of the scariest things in litigation practice is the risk of missing a deadline. Depending on a lawyer’s caseload it may be difficult to keep track of deadlines. There are pleading deadlines, discovery deadlines, motion-briefing deadlines and appeal deadlines, to name just a few. And with some deadlines there is absolutely no court discretion available to save you, appeal deadlines being the best example of this.
So, despite computerized docketing systems and best efforts, lawyers sometimes miss deadlines. That’s just a painful fact of life. Sometimes the courts will exercise their discretion and allow lawyers to make up a missed deadline. Many lawyers have spent many sleepless nights waiting to see if a court will overlook a missed deadline and give the lawyer a second chance.
But sometimes they won’t. A recent painful example of this is the 6th Circuit decision in RJ Control Consultants v. Multiject. That case involved a complex topic, the alleged illegal copying of computer source code. The case had been in litigation since 2016 and had already been the subject of two appeals. In other words, a lot of time and money had been invested. A glance at the docket sheet confirms this, with over 200 docket entries.
The mistake in that case was pedestrian: the court set a specific expert-disclosure deadline of February 26, 2021. By that date each party was obligated to provide expert reports. In federal court expert reports require a proposed expert to provide a detailed summary of the expert’s qualifications, opinions, and the information the expert relied on for his or her opinion. Fed. R. Civ. P. 26(a)(2)(B). The rule is specific and onerous. It often requires a great deal of time and effort to prepare expert disclosures.
In the Multiject case neither party submitted expert reports by February 26, 2021. However, the real burden to do so was on the plaintiff, which has a challenging and complex burden of proof in software copyright cases. In a software copyright case it’s up to the plaintiff’s expert to analyze the code and separate elements that may not be protected (by reason of scenes a faire and merger, for example) from those that are protected expression. As the 6th Circuit stated in an interim appeal in this case –
The technology here is complex, as are the questions necessary to establish whether that technology is properly protected under the Copyright Act. Which aspects or lines of the software code are functional? Which are expressive? Which are commonplace or standard in the industry? Which elements, if any, are inextricably intertwined?
The defendant, on the other hand, had a choice: it could submit its own expert report or just wait until it saw the plaintiff’s report. It could challenge the plaintiff’s report before trial or the plaintiff’s expert’s testimony at trial. So the defendant’s failure to file an expert report was not fatal to its case – it could wait.
The plaintiff’s expert was David Lockhart, and when the plaintiff failed to submit his report on the due date, the defendant filed a motion to exclude the report, and for summary judgment. The plaintiff asked for a chance to file Lockhard’s report late, but the court showed no mercy – it denied the motion and, since the plaintiff would need an expert to establish illegal copying, granted the defendant’s motion for summary judgment.
In other words, end-of-case.
Why was the court unwilling to cut the plaintiff a break in this case? While the 6th Circuit discussed several issues justifying the denial, the one that strikes home for me is the plaintiff’s argument that they “reasonably misinterpreted” the court’s discovery order and made an “honest mistake” as to when the report was due. However, in the view of the trial judge this was not “harmless” error since it disrupted the court’s docket. The legal standard was “abuse of discretion,” and the Sixth Circuit held that the trial judge did not abuse his discretion in excluding Lockhart’s expert report after the missed deadline.
This is a sad way for a case to end, and the price is paid by the client, who likely had nothing to do with the missed deadline, but whose case was dismissed as a consequence. As I mentioned, the case began in 2016, and it was heavily litigated. There are seven reported decisions on Google Scholar, which is an unusually large number, and suggests that a lot of time and money was invested by both sides. To make matters worse, not only did the plaintiff lose this case, but the court awarded the defendants more than $318,000 in attorneys fees.
Be careful out there.
RJ Control Consultants v. Multiject (6th Cir. April 3, 2024)
(Header image credit: Designed by Wannapik)