Chamber Presses Effort to File Amici Brief in Microsoft Case

1. The government's first argument is that the brief of the Chamber, along with those of the other amici supporting Microsoft, attempt to "expand the page limits for advocacy in support of Microsoft's privilege claims." (Id. at 3.) But that assertion, standing alone, is plainly no basis for denying amicus status because all amicus briefs filed in support of any side or position, by definition, increase the number of pages that will be filed in a case. The government's complaint of excessive briefing would only have merit if the Chamber's brief were either duplicative of the briefs filed by Microsoft and KPMG or irrelevant to the case. Yet the Chamber's brief is neither duplicative nor irrelevant. While Microsoft's and KPMG's briefs focus on the application of the key precedents to the specific facts of the case, the Chamber's brief describes more broadly the origins, structure, and purpose of § 7525; additional precedent relevant to interpreting that provision; and the harms to the business community that would result from the government's misguided reading. That is a quintessential role for an amicus brief.

Indeed, the government does not argue that the Chamber's brief is duplicative or irrelevant. Rather, the government accuses Microsoft and the Chamber of engaging in "a divide-and-conquer strategy that implies some coordination among the filers." (Id. at 3.) The Chamber certainly sought to avoid duplication, and thus provided the Court with additional points and authorities not already presented. The government's complaint of a "divide-and-conquer" strategy confirms that the Chamber's brief makes a unique contribution (as does the government's view that if the Chamber's brief is accepted, it may need a full twelve pages to respond).

Similarly, the government complains that the Chamber's brief offers "additional argument in support of positions taken by Microsoft." (Id. at 2.) Indeed, that is true of any amicus brief filed in support of a particular position or party and merely confirms that the Chamber's brief provides additional context and analysis that is relevant to the Court's thorough consideration of the issues presented in this case -- which is precisely what the Federal Rule of Appellate Procedure applicable to amicus briefing calls for. See Fed. R. App. Proc. 29, 1998 Amendments Comment to Subdivision (d) ("[A]n amicus brief is supplemental. It need not address all issues or all facets of a case. It should treat only matter not adequately addressed by a party.").

2. The government's second argument is that the Chamber's Motion, although not actually filed past any deadline under the Federal Rules of Civil Procedure or Local Rules, is untimely by analogy to Federal Rule of Appellate Procedure 29(e). (Id. at 4-5.) But district courts have different rules than appellate courts for good reasons, and one of those fully explains and justifies the timing of the Chamber's brief here. Unlike appellate issues, which often are fully crystallized by the time either party files their primary brief, the sweeping and dangerous privilege theories asserted by the government in this case were not known to the Chamber until the government filed its opposition. Because the Chamber obviously could not have filed its brief addressing the broad and concerning implications of the government's position before it knew the government's position, the government's analogy to Federal Rule of Appellate Procedure 29(e) is entirely inapt.

Dated November 11, 2016.

Respectfully submitted,