Trials & Litigation

The GIF linked to in U.S. District Judge R. David Proctor’s order.

A federal judge in Birmingham, Alabama, used a GIF to express his displeasure with “faux drama in briefing” in a dispute over a motion to exceed page limits.

In a May 1 order, U.S. District Judge R. David Proctor linked to an animated GIF of a skeptical-looking Tom Hanks with the caption, “Really?” Above the Law and Law360 have coverage.

“The rancorous briefing regarding this motion compels the court to weigh in on this current chapter of the parties’ discovery soap opera,” Proctor wrote. The judge said he was providing the GIF image for two reasons.

The first, he said, is to make a point “about faux drama in briefing.” The second is to “remind the parties that while this is no doubt serious litigation, ‘personalities’ in these cases don’t help anyone.”

Blue Cross and Blue Shield of Alabama, a defendant in an antitrust suit, wanted to exceed the 30-page limit in its response to a plaintiffs’ request for discovery sanctions. The company filed a motion for permission to exceed the page limit on April 27, the same day it filed its 46-page brief.

The company said it needed more space because “a detailed and thorough discussion of the discovery process” was required.

The plaintiffs responded with a brief opposing the request for extra pages. The plaintiffs said Blue Cross was “operating under the belief that it can do as it wants without consequences.” Its behavior, the plaintiffs said, “is typical of a monopolist like BCBS-AL, which does what it wants, when it wants, and occasionally visits with its ‘regulator’ the Department of Insurance to ask for forgiveness after it is caught engaging in wrongdoing.”

Proctor said Blue Cross should have conferred with the plaintiffs before filing its request for more space, and motions for more space should generally be filed in advance. And it doesn’t help, he said, “to hear continual characterizations of how, as a general rule, ‘monopolists’ litigate cases.”

“The parties’ puffery fails to impress the court. Strong language—like all rhetorical devices—loses strength with repeated use,” Proctor said.

He also cautioned about long briefs. “The court is mindful of Mark Twain’s aphorism that he once wrote a long letter because he didn’t have time to write a shorter one,” Proctor said.

Proctor didn’t rule on the request for extra pages, however, because discovery matters are being heard by a federal magistrate judge.

The Blue Cross request to exceed page limits was signed by Carl Burkhalter of Maynard Cooper & Gale. Lawyers who signed the plaintiffs’ response were the co-lead counsel, Joe Whatley Jr. of Whatley Kallas and David Boies of Boies Schiller Flexner, and plaintiffs’ liaison Barry Ragsdale of Sirote & Permutt. Dozens of lawyers are representing both sides in the antitrust litigation.

The litigation concerns allegations that the insurer’s plans had exclusive service areas that gave them an unfair advantage in negotiations with doctors and subscribers, report AL.com and the Wall Street Journal. Proctor ruled last month that the restrictions amounted to a possible per se violation of antitrust law.

Ragsdale told AL.com that the suit is the largest antitrust litigation in U.S. history, and the ruling last month was a “seismic event.”