Deadlines matter, but you might want to think twice before you waste the court’s time on small stuff.
Under the Federal Rules of Civil Procedure, electronic documents are considered to be timely filed so long as they are e-filed by midnight on their due date. But what should happen when your filing is just a few minutes late?
A deadline is a deadline, and if you can’t meet it, then you deserve to suffer the consequences, right?
Well, not necessarily.
Some federal courts have recognized that a delay in electronic filing does not automatically subject the filing to consequences such as a Motion to Strike merely because it was filed after midnight.
A group of attorneys decided to test this theory in Hyperphrase Technology, LLC v. Microsoft Corp.
In this case, Microsoft filed a summary judgment motion about five minutes late, and it filed supporting materials about one hour and eleven minutes late. Hyperphrase Technologies moved to strike the filings.
The court found no prejudice to the other side, as explained in its opinion with a great amount of sarcasm written on an erudite level.
U.S.Magistrate Stephen L. Crocker, clearly unimpressed with Hyperphrase Technologies’spectacular display of overzealous advocacy, graced the legal profession with a splendid order that states, in pertinent part:
In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. … I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing program says, so I’ll accept it as true.
Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys [names omitted] promptly filed a motion to strike …. Counsel used bolded italics to make their point, a clear sign of grievous inequity by one’s foe. True, this court did enter an order … ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes later? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.
Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction in duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the evenhandedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late ….
— Hyperphrase Techs., Inc. v. Microsoft Corp., 56 Fed. R. Serv. 3d (Callaghan) 467 (W.D. Wis. 2003).
The court in Hyperphrase referenced that it had already entered an order requiring the parties not to “flyspeck each other,” so the court was frustrated by one party’s motion to strike the other party’s entire summary judgment brief, and thus win the case by default, based on a delay of four minutes and 27 seconds.
Keep in mind that this case was in 2003. More seasoned attorneys will remember using dial-up connections to electronically transfer material back then. Quite frankly, electronic transfers took a lot longer back then. So while one might have started their transfer at 11:56 PM, it might not have finished until 12:02 AM (or later, if the technology experienced a dreaded dropped connection).
Ultimately, Judge Crocker told those nine Hyperphrase attorneys to go back to their rooms and play nicely so their parents can focus on important matters.
Loophole Lawyering Can Backfire On You
The moral of this story is to choose your battles wisely.One should always make it a point to zealously advocate for their client (and preserve error). But, in the absence of a clear showing of prejudice to the opposing party, courts generally do not impose punishment for an unintentional failure to comply with a scheduling order. When the deadline is missed by only a few minutes, it’s usually best to try to win on the merits. The arguments you make can say a lot about the strength of your position in the case (or lack thereof).
If you’re wondering how the case ended, it looks like Microsoft Corporation’s motion for summary judgment was granted. According to the docket on PACER, the clerk of court was directed to enter judgment in favor of the defendant and close the case.
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