We have noted before in this space that, unlike some other courts, the District of Minnesota still holds oral hearings on formal motions. It is common practice for attorneys here to create presentation materials for these hearings, highlighting vital provisions of a document, key statutory language or weaknesses in an opponent’s reasoning. Indeed, the courtrooms are well-equipped for such presentations, and judges are used to receiving them. A recent order from Magistrate Judge Bowbeer offers litigators an important reminder, however, that presentation materials should be shared with your opposition and cannot introduce new, unbriefed arguments.
On September 2, 2016, Magistrate Judge Bowbeer held a hearing on the defendant’s motion for attorneys’ fees, expert witness fees and costs in the M-I Drilling Fluids UK Ltd. v. Dynamic Air Inc. case. The Court Minutes from the hearing reflect that defendant’s counsel provided the Court with a “copy of the Powerpoint presentation it used during oral argument, as well as a copy of counsel’s intended remarks.” While the Minutes noted that the Court would not consider the intended remarks because “briefing on this motion is complete,” Magistrate Judge Bowbeer also invited the plaintiffs to respond by letter brief to any new arguments that were raised in the presentation materials. In their subsequent letter brief, plaintiffs argued that the presentation material included many arguments not made in the briefing, offered simply to circumvent the Local Rule’s word limits. plaintiffs further provided copies of email correspondence showing that defendant’s counsel had initially refused to provide a copy of the presentation materials to opposing counsel, and had never provided a copy of the “intended remarks” that were given to the Court.
In an order that was sure to make the defendant’s legal team cringe, Magistrate Judge Bowbeer agreed with plaintiffs “that consideration of either [the presentation or the intended remarks] by the Court would give defendant an unfair advantage as it would circumvent the deadlines and limits applicable to both parties in connection with the briefing and argument.” Her order indicated that she would therefore “not read or consider either of the documents,” and had “securely disposed of both documents.”
How can litigators avoid similarly receiving express confirmation that the judge has shredded the fruits of their labor? The two takeaways here are simple: First, avoid putting any new material in your presentation. It is an opportunity to emphasize the most important aspects of the argument made in your brief, not to resurrect points that were cut from your original outline. Second, bring several extra copies of the presentation to the hearing—at least enough for the judge, clerk, and opposing counsel. This is good practice in case the AV system does not work properly and avoids any later accusations of ex parte communication with the judge. Refusing to provide your opposing counsel with materials that were given to the court only invites the judge to file the presentation in the waste bin.