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Tarla Makaeff, et al. v. Trump University

March 2, 2012


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


Rather than comply with the Court's Chambers Rules on the informal dispute resolution process or the Civil Local Rules on Applications for Reconsideration, the parties sent e-mail communications directly to the Court's research attorney without advance notice. After some admonishments below, the Court rules on the issues presented in the e-mails.


On January 6, 2012, without first contacting the Court by telephone as required by Chambers Rules, Defendants submitted a 13-page letter-brief on various written discovery disputes. This violated the Court's Chambers Rules in more than one way. However, given the nature and number of disputes, the Court elected to overlook Defendants' transgression and accepted the brief. Plaintiffs' response brief included additional disputes that were not included in Defendants' brief. An Order on these disputes issued on February 13, 2012. (Doc. No. 93.)

On February 22, 2012, counsel for Defendants sent an e-mail directly to the Court's research attorney and asked for an extension of time to comply with a portion of the February 13, 2012, Order. Although improper and violative of the Court's Chambers Rules' provision on communicating with chambers, the Court again elected to overlook the transgression because the e-mail contained no legal arguments and was essentially a written version of information counsel would have conveyed via telephone.

That same day, Plaintiffs' counsel sent a response e-mail to the Court's research attorney. In addition to responding to Defendants' e-mail, Plaintiffs sought reconsideration of portions of the February 13, 2012, Order, made arguments, and cited legal authorities to that end. This violated both the Court's Chambers Rules and Civil Local Rules. Two additional e-mails followed before the Court had a chance to respond and ask the parties to cease.


In the interest of efficiency, the Court again elects to overlook the failure to comply with the rules and the violations of protocol. However, should the parties again fail to comply, the Court will summarily reject all future briefing, which may result in the dispute not being heard if the time for bringing the dispute to the Court's attention has passed.

Furthermore, through its recent dealings with the parties, the Court has noticed a tendency to take liberties with presenting case law and facts in a manner that favors them, but which may not be a faithful reading of the case, does not recognize distinctions that set cases apart from theirs, or ignores the outcome of the case or other contrary reasoning in a court's opinion. As a general matter, not accurately characterizing a case, overstating the congruity of a case with yours, and citing a select passage but failing to recognize that the remaining discussion or the outcome militate against one's argument are generally considered improper or poor advocacy. Indeed, as one jurist advised long ago:

"Nothing, perhaps so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he is reasonably entitled to claim. Do not 'stretch' cases cited and relied upon too far, making them appear to cover something to your benefit they do not cover. Do not try to dodge or minimize unduly the facts which are against you. . . . ."

Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 13 (2008) (quoting Hon. Wiley B. Rutledge). The Court is dismayed that the parties appear to advocate polarized positions based on skewed, inaccurate, or incomplete interpretations and representations. The Court cautions the attorneys and their clients to take better care in the future when they interpret case law and advocate their position in a manner that is faithful to the authority cited. Rule 11 sanctions always remain an option for the Court if this behavior continues. With these admonitions, the Court now continues to the disputes at issue.

A. Request For Extension of Time to Respond to RFP No. 11

By stipulation between the parties, Defendants' request for extension of time to respond to Plaintiff's RFP No. 11 is granted. Defendants shall ...

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