The first part of that line is from Shakespeare (Hamlet, Act 2, Scene 2). The underlying principle is embodied in many local federal rules that set page or word limits on the length of various submissions, such as briefs and memoranda. In the District of Minnesota, the objections to the ruling of a magistrate judge are limited to 3,500 words, a measurement that can be made with ease using the “word count” technology in most word processing programs. But it is possible to tweak the word count technology to achieve a higher or lower word count.
In high school, we might have tweaked the word count technology to yield a higher number of words, in order to meet the length requirement for a term paper. But in Northbrook Digital LLC v. Vendio Services, Inc., 2008 U.S. Dist. LEXIS 45019 (D. Minn. June 9, 2008), counsel for the defendant did the opposite, the court found, and tweaked the technology to attain a lower word count in order to satisfy the 3,500 word limit. This approach turned out to be too clever by half.
Counsel initially submitted objections that the judge found had “grossly exceeded” the 3,500 word limit, but because counsel readily admitted the error, the court allowed a resubmission. This time, counsel certified that the document was 3,485 words – 15 words to spare!
But the judge noticed that counsel had apparently managed to tweak the word count technology by hyphenating phrases that would not ordinarily be hyphenated, so that they would count as only one word. Further word count savings were had by eliminating spaces in certain citations, so that the word count feature would also treat them as having fewer words (although the judge did admit that the absence of these spaces may have been in error). But what really pushed the judge over the edge was that in order, to save a few more words counsel referred to the magistrate judge by her last name only.
The court issued the following rebuke:
This Court makes plenty of inadvertent errors itself, and thus this Court generally overlooks inadvertent errors, as it did with respect to Vendio’s first violation of the rule. Had Vendio confined itself to using improper hyphenation in its substitute response, the Court might again have overlooked Vendio’s conduct, even though this time the conduct was almost surely not inadvertent. But Vendio has cheated the word limit not only by using hyphens improperly, but by referring to Judge Graham, at least twenty times, simply as “Graham.” The Court commends the practice of referring to parties and witnesses by last name only. *** But this Court cannot recall reading a motion, brief, or other paper — even from the most hapless of pro se litigants — that referred to a federal magistrate judge by her last name only. No one does this because it is disrespectful to the magistrate judge. Surely one of the six lawyers at the three prestigious firms representing Vendio could have figured out a way to squeeze twenty words from a 3,500-word memorandum without being disrespectful to Judge Graham.
The Court understands that Judge Graham’s R&R raises complicated issues, but Northbrook’s counsel were able to address those issues in 3,500 words without playing games with hyphens or being disrespectful to Judge Graham. If Northbrook can properly object to an R&R in 3,500 words, then surely Vendio can properly respond to that objection in 3,500 words. Vendio’s counsel — who now have two strikes against them — should take great care to comply with both the spirit and letter of this Court’s rules in the future.