We got a good "what not to do" example today, relayed in an opinion by Judge Williams.
In the opinion, the Court addressed objections to a magistrate judge ruling on a privilege issue (remember—you can object to non-dispositive magistrate judge rulings in addition to R&Rs. Good luck.).
As the Court explained, the defendants initially argued to the magistrate judge that Third Circuit law governed, and that Federal Circuit law was grounded in the same principles as Third Circuit law anyway. The magistrate judge agreed:
In briefing submitted to the Magistrate Judge, Defendants state that, "Federal Circuit [law] does not differ [from Third Circuit law] in that it 'is grounded in principles of fairness. '" D.I. 224 at 3. The Magistrate Judge credited Defendants' argument to conclude Third Circuit law applies. See D.I. 232 at 3 n.2 ("Because Defendants themselves initially relied on Third Circuit caselaw here (as did Plaintiff) and because Defendants assert that the Third Circuit's approach to this issue is no different from that of the Federal Circuit, the Court will herein apply Third Circuit law regarding the 'at issue' doctrine to this patent case." ).
Then, in objecting to the magistrate judge's ruling, the defendants apparently reversed position, arguing that Federal Circuit law differed, and that the magistrate judge had erred by relying on
