Tuesday, February 23, 2010


NYLJ 5-25-07


3. As long as it isn’t a US Supreme Court ruling, no judge is going to have the last word on words when a senior partner doesn’t like it. You’ve got a 300-attorney slave ship in Philly and couple of hot 2nd year associates with no personal life to pull the all-nighters needed to generate any appeals you want. No one is going to give her an order on what to do with her action...even if she has to take the call on vacation.

Of course, SDNY is going to, at its discretion and within moderation, make it an expensive snit. Justice Bear here clawed Dorsey & Whitney’s Esquiress Peters and poured salt in the wounds by recommending her to attend a CLE on “Ethical Bounds of Aggressive Litigation.” Her stance was just that as well, taking the offense to the injury out of jury, saying the decision was “riddled with errors” and that her firm had “jumped through hoops” on this one. Does resorting to shopworn stock phrases reflect genuine outrage or knee-jerk reactionism. Further, was it justified?

The case involved three former employees of Wolter Klunver being sued, along with their present company, Scientage, for theft of trade secrets. What this flap flew on was a flock of depositions, transcripts of the individual defendants, given over to Peter’s group—but marked “confidential” pursuant to a protective order. That little codicil would not have been so significant had WK not dismissed the suit before the Bear and then filed a near-identitcal suit in Federal Court in Massachusetts. And, as the defense’s claim that the MA pleadings contained no info from the transcripts—in violation of the discovery order—even while WK & Peters moved to use these papers in the new action.

As you might expect, the ursine definer got up on his hind legs, with good reason. He denied the motion on the ground that the protective order stated the material could not be used in any other proceeding, and rejected the allegation that the MA matter wasn’t a new one but merely a continuation of the old NY one. (And if the Bear wasn’t a Yankees fans, it would still be a stretch to say the Red Sox were the same as pinstripes.) And went further to say that the defendant’s in MA could be as prejudiced as, when the NY action was dismissed, they’d given substantially more discovery that the plaintiffs.

All of this was background to the issue of the transcripts’ handover, however.

The day after Tax Day, the Bear repeatedly ordered the turnover of transcripts within 24 hours. Which they did, with an unspecified number of copies and with an unspecified number outstanding. Then, 11 days later, the plaintiff’s counsel turned over an additional 20 copies saying, “we missed some.” Naturally, Peters had the best explanation of all: “I was literally standing in the Grand Bazaar of Istanbul when I got these e-mails.” Like, she was on her vacation, so how could her assistants be expected to follow through without her personal supervision. Like, another partner (who was a former US attorney), along with an associate, couldn’t be expected to locate a bunch of bound volumes amid the clutter of so much of her similar effects. Like, of course Peters was solo-ing on this case without any legal assistants or paralegals—and definitely no co-counsel—and there should have been no expectation of any other kind of competent entity or party to come in and pinch-hit on this throw. Like, we’re sure the same issue comes up when Mr. Dorsey or Mr. Whitney goes on vacation—probably having to shut down the practice during summer…

Like, who has this much imagination outside of fiction? And we ain't talking John Grisham either.

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