Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document

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Court scolds Weil partner for brief found…

Appellate Practice Court scolds Weil partner for brief found to 'incorporate by reference' nearly 2,000 words from another document

By Debra Cassens Weiss

February 20, 2024, 1:34 pm CST

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A partner with Weil, Gotshal & Manges apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs. (Image from Shutterstock)

A partner with Weil, Gotshal & Manges apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.

The partner, Mark Perry, would have exceeded limits by more than 1,300 words if he had been allowed to “incorporate by reference” nearly 2,000 words from a prior brief in a related case, the Federal Circuit said in its Feb. 16 order, issued sua sponte.

Reuters, Law360 and IPWatchdog have coverage.

When opposing lawyers objected to the attempt to incorporate the material by reference, citing the prior case involving Weil, Perry “chose to do nothing,” the Federal Circuit said.

The better course, when it becomes apparent that a lawyer has violated a court order, would be to bring it to the court’s attention and withdraw the improper argument, the Federal Circuit said.

Instead, Perry had argued that the Federal Circuit never ruled on incorporating an argument by reference when it involves the same party’s brief in a companion appeal.

The position “is unreasonable given this court’s prior opinions,” the Federal Circuit said.

“Since appellee has made this argument, it gets this order,” the appeals court said.

Perry had argued that his intent was to “enhance efficiency,” “streamline the briefing,” and “save the time and resources of the court.” The Federal Circuit said those goals were not served.

“Requiring the court to cross-reference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count. But we accept this mistake was made in good faith,” the appeals court said.

The prior case involving Weil is Microsoft Corp. v. DataTern Inc., a 2014 decision. The Federal Circuit also cited a 2023 decision, Medtronic Inc. v. Teleflex Life Sciences Ltd.

“We hoped not to have to write this order,” the appeals court said. “Rule 28 of the Federal Rules of Appellate Procedure seems clear. Microsoft seems clear. Medtronic seems clear. These cases hold it is improper to exceed the word count through incorporation by reference.”

According to coverage by IPWatchdog, Rule 28 limits most references in appellate briefs to documents that are part of the intrinsic record of the case. Parties may also adopt part of another brief by reference in appeals with multiple appellants or appellees.

Perry’s incorporation by reference was part of a footnote.

“In retrospect, it would have been better not to have included it,” he said in his supplemental brief arguing against sanctions.

The Federal Circuit did not sanction Perry but said “future litigants should appreciate” that future violations will likely result in sanctions.

The appeals court’s order was issued in in patent infringement litigation between Comcast Cable Communications and the Promptu Systems Corp., a speech-recognition technology company. Perry represents Comcast in four related appeals.

Perry and Weil did not immediately respond to an ABA Journal email requesting comment.

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