The Volokh Conspiracy
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If You Grant a Mouse's Motion for a Cookie, It Might Take a Mile's Worth of Bites at the Apple
Also geese and ganders.
From Basulto v. Netflix, Inc., decided Saturday by Magistrate Judge Jonathan Goodman (S.D. Fla.):
"Give him an inch and he'll take a mile"
— Well-known proverb
The hugely-popular children's book If You Give a Mouse a Cookie involves a boy who gives a mouse a cookie. The mouse then asks for milk, and a series of requests begins. The mouse makes request after request, and the boy grants all the mouse's wishes: a glass of milk, a straw (to drink the milk), a mirror (to avoid a milk moustache), nail scissors (to trim his hair in the mirror), a broom (to sweep up the hair trimmings), a nap, a story (to be read to him), a picture (to be drawn), a refrigerator (to hang the picture on)—and then a glass of milk (because looking at the refrigerator made the mouse thirsty).
One theme of the story is that every event has consequences. There is always a cause and an effect. Every action causes a reaction. Decisions about litigation tactics are no exception to this fundamental rule. Another theme is that the recipient of a favor or benefit may well seek additional rewards. The lessons children learn from If You Give a Mouse a Cookie apply equally to tactics used in lawsuits.
All of which brings us to Defendant Netflix's Expedited Motion to Strike Plaintiffs' Amended Opposition to Netflix's Motion for Summary Judgment…. Essentially, Netflix contends that Plaintiffs have taken advantage of a recent discovery ruling (which permitted an additional two hours of deposition testimony on limited topics from a Netflix corporate representative) to unfairly submit materially revised materials: the amended opposition brief, statement of undisputed facts, new declarations from Dreyfuss and Basulto and related exhibits. According to Netflix, Plaintiffs abused their ability to submit a revised memorandum to the limited extent it concerned the new and additional deposition testimony by fundamentally re-conceiving their arguments.
Netflix contends that most of the changes to Plaintiffs' summary judgment motion opposition papers "have nothing to do with the additional testimony by Netflix's corporate deponent." According to Netflix, Plaintiffs cited the new deposition transcript only six times (concerning four topics) in their Amended Summary Judgment Papers.
But, Netflix argues, Plaintiffs' other amendments, which it says "predominate" in the Amended Summary Judgment Papers, include [matters unrelated to the new deposition] …. Stripped to its basics, Netflix's argument is that Plaintiffs have taken unfair advantage of a discovery ruling which authorized a limited, continued corporate representative deposition and an amended opposition limited to changes tethered to the Second Deposition testimony. Phrased differently, Netflix contends that Plaintiffs are improperly seeking to get a second bite at the summary judgment apple by trying to sneak in a dramatically revised (and presumably better) opposition under the rationale that the Amended Summary Judgment Papers are simply updates prompted by the additional deposition testimony….
Plaintiffs [indeed] significantly altered their Initial Summary Judgment Papers with myriad changes which have nothing to do with the Second Deposition testimony upon which any revisions should have been based. Not only did Plaintiffs take a second bite at the apple; they took several hefty chomps….
There is only one logical and reasonable remedy which can adequately ameliorate the undue prejudice Netflix would suffer from Plaintiffs' litigation tactics: strike the improper submissions in the Amended Summary Judgment Papers and require Plaintiffs to submit revised amended submissions under a tight deadline.
The Court does not have the leeway to reschedule the summary judgment hearing. Trial is scheduled for the calendar beginning October 28, 2023. The briefing, my Report and Recommendations ("R&R"), the inevitable Objections (to the R&R) and Response to Objections must all be completed in time to give Judge Moreno time to review the material. Therefore, I am canceling the June 29, 2023 hearing. The R&R will be based on the record. Delays in having the hearing will significantly undermine the plan to cause all necessary submissions to be filed in time for Judge Moreno to issue his ultimate ruling on Netflix's summary judgment motion. Given this reality and the concerns it generates, the alternative of proceeding without a not-required hearing is logical….
Therefore, by 5:00 p.m. on Thursday, July 29, 2023, Plaintiffs shall file: (1) a revised amended opposition to Netflix's summary judgment motion, and (2) a revised amended statement of facts. These two submissions must be identical to the Initial Summary Judgment Papers, except that Plaintiffs may add or revise points if (but only if) they can be linked directly to the new testimony provided in the Second Deposition….
{The Undersigned is often a follower of the "what's good for the goose is good for the gander" philosophy. Therefore, just as Plaintiffs are not permitted to improve their brief with new arguments and facts except those specifically linked directly to the deposition testimony, Netflix's Reply memorandum and Response to Plaintiffs' Statement of Facts may not include legal arguments not already raised in the initial summary judgment motion. This consequence would occur anyway, as courts do not consider legal arguments raised for the first time in a reply memorandum.} …
So it is time to return to (and modify) the children's book analogy and proverb mentioned at the start of this Order. The tight briefing schedule is an effect caused when lawyers receive the authority to obtain an inch worth of additional discovery (because of a deposition representative not being provided with sufficient "cookies" of corporate knowledge) and gobble up a figurative mile's worth of unauthorized briefing….
