Too Many ‘Emergencies’ May Lead to Finding a Case to be “Exceptional”

Order Denying EnerPol, LLC’s Emergency Motion to Strike Schlumberger’s Previously Undisclosed Claim Construction Proposal From its Technology Tutorial and Claim Construction, EnerPol, LLC v. Schlumberger Technology Corporation, E.D. Tex. (January 31, 2018) (Judge Rodney Gilstrap)

Almost everyone has heard the story of the boy who cried wolf: a bored shepherd amuses himself by shouting “wolf!” when there was none, laughing every time the villagers rush out to protect his flock. The one time a wolf does actually come to attack, the villagers ignore his call for help because of his previous false alarms.

In his order denying plaintiff’s emergency motion, Judge Gilstrap reminded the parties and counsel that one should not style a motion as an “emergency” when it isn’t, or else risk being reprimanded for crying wolf one too many times.

In EnerPol, during a technology tutorial, defendant Schlumberger defined a term that plaintiff EnerPol believed was not identified previously in Schlumberger’s  claim construction terms. EnerPol responded by filing an “Emergency Motion to Strike Schlumberger’s Previously Undisclosed Claim Construction Proposal From its Technology Tutorial and Claim Construction Briefing.” The court responded to EnerPol’s emergency by quickly considering the parties’ arguments, ultimately ruling against EnerPol.

The court cautioned the parties “and all practitioners” against abusing the “Emergency Motion” process, reminding them that it is “an extremely disruptive process that represents to the Court that immediate action must be taken in order to prevent material, avoidable harm.”

In the end, the court warned that “[s]hould the Parties ignore the guidance going forward,” the court might “feel[] compelled to issue sanctions and ultimately, they may push this case into a posture of being exceptional.”

In other words, don’t cry wolf unless it’s true.