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Court Rejects Exhibit Lists and Objections That Would “Require a Judge to Shovel Through Steaming Mounds of Objections” and Orders Objections Waived

As this patent infringement action headed to trial, the district court scolded both parties for their exhibit lists and, in particular, the objections to the exhibit lists. The district court explained that “Affinity has submitted a 39 page list of 979 exhibits. Out of the first 360 exhibits Ford objected to no less than 250, at which point the court stopped counting, although it appears that the percentage of objections is about the same for the remaining 607 exhibits. Even better, the objections are not actually stated and do not refer to specific portions of any exhibit. Instead Ford uses a code consisting of 16 symbols.”

The district court then criticized Ford’s “secret decoder ring” of objections. “Ford did provide a version of a ‘secret decoder ring’ so the court could discern, for example, that exhibits marked ‘BT’ were objected to on the ground that they were ‘Admissible for Bench Trial Only,’ an objection not listed in the Federal Rules of Evidence. However, most of the exhibits were marked with multiple symbols, requiring repeated references to the ‘code.’ For example, Plaintiffs Exhibits 174 through 228 were all marked ‘ R, P, H.'”

In analyzing Ford’s exhibits and Affinity’s objections, the district court found similar problems. “To Ford’s credit, it only submitted 476 exhibits. Affinity’s objection percentage was in the range of a mere 40% and evidence rule numbers were used instead of a code. Nevertheless, multiple objections without an indication of whether an objection applied to all or a part of an exhibit were common.”

The district court then scolded both parties for their objections. “It seems the parties are under the misconception that the Federal Rules require a judge to shovel through steaming mounds of objections in a Herculean effort to discern the shining gold nugget that will result in a ruling that prevents an opponent from introducing a document. Nothing could be further from the truth. Objections must be specific. Fed. R. Evid. 103(a)(1)(B). The phrase ‘apparent from the context,’ as used in that rule, does not mean apparent to the attorney who has been studying the pleading and evidence for months and has developed subtle, but undisclosed, theories about the relationship between various exhibits and the elements of each cause of action.”

The district court further explained that “[i]nundating the court with a smorgasbord of objections from which to choose leads to the firm perception that, being unable to articulate clear grounds for an objection, counsel simply feels the evidence might hurt the client’s case. But introducing evidence that is prejudicial to an opponent’s case is a trial lawyer’s job. Relevant evidence is admissible unless certain limited exclusions apply. Fed. R. Evid. 402. Even a plaintive complaint that relevant evidence is ‘unfairly prejudicial’ does not meet the standard for exclusion, unless there is a showing that the claimed unfair prejudice substantially outweighs the probative value of the evidence. Fed. R. Evid. 403.”

As a result, the district court found, “given the number of objections, their lack of specificity, and the multifarious nature of the objections,the court finds, and it is ORDERED, that Ford’s objections to Affinity’s exhibits [Doc. #193] and Affinity’s objections to Ford’s exhibits [Doc. #184] be considered WAIVED for failure to comply with the Federal Rules of Evidence and this court’s order.”

The district court further ordered “that lead counsel shall confer in detail and in good faith about the objections each has submitted with an eye toward reaching agreement as to which objections and which exhibits will be withdrawn. Following such conference each side may submit proper and specific objections for up to fifteen exhibits. Counsel are encouraged to consider selecting exhibits which are representative of a group of exhibits and agreeing that a ruling on one will apply to all.”

Affinity Labs of Texas, LLC v. Ford Motor Co., Case No. 1-12-CV-580 (E.D. Tex. Aug. 25, 2014)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or