People who love sausage and people who believe in justice should never watch either of them being made
As a life-long lover of sausage; sometimes-disillusioned believer in justice; and intimate observer of the making of both, I’ve found times when watching sausage-making might be the less disturbing.
A hog, of course, would differ. I might, too, if I lived in Hawaii’s First Circuit or, as it turns out, the State of Montana or the Eastern District of California – a thought I would not have considered had a reader not provided Plaintiff’s opposition to the Pro Hac Vice admission of two Gibson, Dunn and Crutcher attorneys for the Defendant, Dole from Gerardo Dennis Patrickson, et all versus Dole Food Company, Inc., et al.
Plaintiffs object to the application for admission pro hac vice of the Gibson, Dunn and Crutcher (“GDC”) attorneys based on the evidence of their firm’s record of sanctioned misconduct, misconduct that has no place in this litigation and file this memorandum in opposition.
Plaintiffs’ opposition is based on the record of the law firm of Gibson Dunn and Crutcher’s sanctioned misconduct that demonstrates a pattern and practice of abusive litigation tactics designed to conceal the truth, disrupt the orderly progression of litigation and exhaust the resources of the adverse parties. in an attempt to intimidate them and their counsel from pursuing their claims .on the merits, misconduct spawned by a culture of obstruction, gamesmanship and flagrant disregard for the authority of the Courts.
Gibson, Dunn’s record of sanctioned misconduct speaks for itself
Plaintiffs were locked and loaded when they filed their motion in opposition.
Perhaps the most notable example of GDC’s culture of litigation misconduct, but by no means the only one, is the recent decision by the Montana Supreme Court upholding a 9.9 million dollar punitive damage award (remitted from a jury award of 20 million dollars) for malicious prosecution and abuse of process… Describing Gibson, Dunn’s misconduct that justified the imposition of punitive damages, the Montana Court stated:
Defendants blatantly and maliciously tried to intimidate Seltzer with the apparent power, prestige, and resources of a large, nationally prominent law firm coupled with an ominous lawsuit that they knew threatened to ruin and devastate him professionally, personally, and financially.
The Court continued, After the malicious lawsuit was filed, GDC made matters even worse by abusing the discovery process, thereby undermining Seltzer’s ability to defend himself. As the District Court found, GDC abused discovery when it intentionally withheld certain non-privileged correspondence … [and] concealed damaging admissions by [witnesses with relevant knowledge that] were extremely damaging to Defendant’s asserted position….
Reviewing Gibson, Dunn’s misconduct throughout the underlying case and the one that precipitated it, the Montana Court noted that Gibson, Dunn “continued to disregard fundamental litigation rules and basic principles of professional conduct. For example, GDC blatantly misrepresented an important fact in one of its motions filed with the District Court.
“Additionally…GDC abused the discovery process in the instant action when it concealed two documents that the District Court subsequently found to be “highly relevant.” The District Court found that GDC’ s nondisclosure “impaired Seltzer’s ability to depose key witnesses [and] impaired his ability to meaningfully follow up and investigate.”
…”Summarizing its review of Gibson, Dunn’s misconduct, the Montana Supreme Court made this observation: The goal of every trial is “a search for the truth” (citations omitted). In 2004, this well-settled principle of Montana law was included in the first sentence of the Preamble to the Montana Rules of Professional Conduct, which states: “A lawyer shall always pursue the truth.” Here, GDC’s conduct represents the antithesis of the pursuit of truth.
The Court concluded its assessment of Gibson, Dunn’s conduct with the following characterization: In short, GDC’s use of the judicial system amounts to legal thuggery. This behavior is truly repugnant to Montana’s foundational notions of justice and is therefore highly reprehensible
This was not an isolated instance of poor judgment that resulted in misconduct; it was the product of a litigation culture that promotes it.
Also cited in the Plaintiff’s opposition was a July 2005 case in the Eastern District of California.
…United States Magistrate Judge for the Eastern District of California imposed $102,078.97 in sanctions against the Gibson, Dunn law firm (on top of the $12,000.00 it had previously imposed) for abusive litigation tactics and misconduct that the Court concluded spawned from, “a culture [that] promoted flagrant disregard of this increased discovery abuses obstruction, gamesmanship and Court’s orders to result in and to smear the legal profession and standards to which attorneys are to be held”.
…In yet another recent instance of a Court imposing substantial sanctions on a Gibson, Dunn client for concealing the truth, the California Superior Court of Orange County, California, severely sanctioned Gibson, Dunn’s client KPMG-US.
In issuing its sanctions order, the Court observed that: The purpose of the rules regarding discovery is to promote truth in legal proceedings. Therefore, any interpretation of the rules by a party that tends to foster half-truths is discouraged.
The Court then concluded that: KPMG-US deliberately or recklessly withheld or delayed producing many responsive documents in order to gain unfair advantage and that [the Plaintiff] was unfairly prejudiced by those actions.”
These are serious violations of the Rules of Procedure to say nothing of violations of professional conduct and ethics that flow from a no holds barred, anything goes to win law firm culture that involves concealing the truth and withholding evidence…
Other arguments in the Plaintiff’s motion are equally compelling but not included in the post as there’s more to this story – and for that we turn to excerpts from the trascript from the motion hearing before the Honorable Gary Won Bae Chang presiding on November 5, 2008.
The first excerpt is an exchange between Judge Chang and local counsel representing the two Gibson, Dunn attorneys, Melvyn Miyagy.
THE COURT: I’m wondering whether the law firm, Gibson, Dunn & Crutcher, do they condone the acts of counsel in the Gallo Winery case? I’m talking about the Gibson, Dunn attorneys.
MR. MIYAGI:Well, let me answer it this this way, Your Honor. If the allegations were to be accepted, that would be one thing. But those allegations were disputed, Your Honor.
And so I’m not trying to dance around the fine point, The allegation has not been accepted as a correct statement of fact. It is my understanding that once the Gallo matter has been finalized, it will be appealed.
And so I understand the Court’s question directly. So if that particular set of actions, if you want to call them that, Your Honor, were to be accepted as true, to say that we would condone them I don’t think would be an accurate statement because they are in dispute, Your Honor. And the matter has not been the subject of final judgment and that particular matter will be appealed. That’s what I have been advised, Your Honor so I know it is a distinction. I just want to make sure it’s clear. But just so it’s clear, Your Honor, I do understand the concern about the behavior as described in that particular decision. But that is not Ms. Neuman and Mr. Edelman’s actions that are in question, Your Honor.
And, so, with that in mind, there is no evidence, and I think even in the other case, which we attached a copy of it, Plaintiff’s counsel acknowledge that they have no information, no basis on which to challenge the admission of Ms. Neuman and Mr. Edelman’s pro hac vice other than this shotgun attack, if you will, will, against the entire firm.
I hope I answered your question. I tried to be as direct as I could.
THE COURT: You didn’t. And if you stand by that answer, I’m going to deny the motion.
MR. MIYAGI: Okay.
THE COURT: Why don’t you answer it directly? Is that the kind of behavior this law firm condones?
Mr. Miyagi said, it the firm did not condone such behavior; but, does Gibson Dunn and Crutcher ring any bells for you? Let’s put it this way. If the name isn’t familiar now, it won’t be bells but a gong that you hear as you read these two practice area accomplishments from the firm’s website:
Successfully serving as lead counsel for candidate George W. Bush in federal court litigation stemming from the disputed ballot counting in Florida during the 2000 presidential election. In less than three weeks, a team of Gibson Dunn appellate lawyers led by Mr. Olson successfully briefed and argued two cases before the Supreme Court, Bush v. Palm Beach County Canvassing Board and Bush v. Gore, both of which raised novel and complex issues of federal constitutional and statutory law.
Winning a major victory in August 2007 for the insurance industry in litigation over insurance coverage related to Hurricane Katrina. The U.S. Court of Appeals for the Fifth Circuit held that homeowners’ insurance policies with exclusions for “flood” did not provide coverage for water damage that occurred when the City of New Orleans was inundated with water following Hurricane Katrina. The Fifth Circuit agreed with a series of arguments that Gibson Dunn advanced on behalf of our insurance company client, and a dozen other major insurance companies, reversing a lower court’s decision and concluding that “the flood exclusions in the plaintiffs’ policies unambiguously preclude their recovery.”
Reading the Gibson Dunn partner’s statement that he had had “a lot of fun”appealing the Katrina case is more disgusting than a hog killing, sausage lover or not.
The attorney appealing the Katrina case, Richard J. Doren, a Gibson Dunn partner in Los Angeles, brought his national class action defense experience to an appeal involving insurance policyholders and the floods that followed Hurricane Katrina. Doren convinced the 5th U.S. Circuit Court of Appeals to reverse a trial court ruling that insurance covered the flood caused by the breach of New Orleans’ levees.
With more than 200,000 policyholders, the stakes were very high and the challenge intense. Still, “putting together a good argument — that’s a lot of fun professionally,” Doren said.
Opposing counsel in the Katrina insurance case, John Ellison, a Reed Smith partner in Philadelphia, said the insurance coverage issues are still being litigated before the Louisiana Supreme Court. He praised Doren’s job, then added: “I am still surprised with the result.”
The more than 200,000 policyholders, no doubt, found little to be fun and a lot to be surprised about unless they were familiar with the Montana Court’s the 105-page opinion and the firm’s response in the Wall Street Journal. Gibson Dunn, which does legal work for Dow Jones & Co., the owner of the The Wall Street Journal, issued the following statement:
This ruling grossly mischaracterizes the facts, violates constitutional limits on punitive damage awards, and contradicts recent decisions of the U.S. Supreme Court and many other courts from around the country striking down arbitrary and excessive damage awards,” Pearl Piatt, a spokeswoman for the firm, said in a statement. “We plan to seek review by the U.S. Supreme Court.
Those in the know, so to speak, wouldn’t find anything surprising about the planned appeal to the Supremes, nor would anyone reading this story.
The Securities and Exchange Commission is getting it from all sides these days. Most of the criticism has been focused on its weak enforcement record. But in a recent suit challenging a proposed SEC rule, a group of insurance companies is taking a contrarian position, complaining that the agency is actually engaged in overregulation.
The man leading the charge is a familiar thorn in the SEC’s side. On behalf of the Chamber of Commerce, Gibson, Dunn & Crutcher’s Eugene Scalia (yep, he’s the son of Supreme Court justice Antonin Scalia) has twice successfully challenged a proposed SEC rule that would require mutual fund boards to be at least 75 percent independent, including an independent chairman. This time, Scalia is representing six insurance companies that want to overturn Rule 151A, which would regulate fixed indexed annuities as securities. The rule isn’t scheduled to take effect until January 12, 2011, but last week, the insurance companies filed their challenge with the U.S. Court of Appeals for the D.C. Circuit. (Here’s the petition for review and here’s the motion to stay the rule.)
With this additional context, we return to Hawaii and the Honorable Judge Gary Won Bae Chang as he addresses the discovery issue of Plaintiff’s opposition to Pro Hac Vice admission of the Gibson Dunn attorneys.
THE COURT: Well, I’m going to tell you…I detest that kind of response that gives no information. And if that’s the level of practice for this firm, they are in for a world of hurt. Because when I get motions to compel discovery with that kind of response, and that is hiding the ball and gamesmanship, I will respond with as severe a sanction as I can impose. And I hope that message is clear.
MR. MIYAGI: Yes, Your Honor…
THE COURT: I will tell you, Mr. Miyagi, the only reason why the Court is considering granting this [pro hac vice ] motion is because of your assurance. carries great weight in this court, and that is a great burden. And the integrity with which you enjoy in this Court is at stake.
MR. MIYAGI: I understand, Your Honor.
THE COURT: And pro hac vice counsel needs to understand that sometimes we might be the 50th state, but we are, nevertheless, a sovereign state and we practice law in a certain way in this jurisdiction. And I’m not going to tolerate gamesmanship, delay and obfuscation of information when a simple question is asked. That is not the way we practice law, in particular, in a case of this complexity.
All right. Court is ready to rule.
Judge Chang granted the pro hac vice motion; however, he made it clear everybody needs to be on their model behavior…the Court will hold pro hac vice counsel to the standards of Hawai’i as dictated by Mr. Miyagi…
Pro hac vice counsel shall abide by the local custom and practice and shall also abide by the guidelines of professional civility and courtesy and civility which will be attached as an exhibit to the order. That will form not a guideline,but a mandatory minimum level of conduct for pro hac vice counsel…
The ruling was followed with an discovery Order hand delivered to local counsel on the 22nd of this past January.
The Discovery Master having considered Plaintiffs’ Motion to Compel Discovery related to Plaintiffs’ Second Request, dated August 26, 2008 for Answers to Interrogatories to Defendant Dole Fresh Fruit Company and Requests for Production of Documents; and having considered arguments submitted by the parties…
What I found significant about the Order was its balance. There was no deference to Dole’s position in the State’s economy; yet, there was also a clearly stated respectful recognition that Dole as a business had the potential need to protect certain information.
Dole shall produce…unredacted copies…to the Master in camera, with a letter setting forth with particularity the reasons and basis for redacting the redacted portions of the documents. A copy of this letter will be served on counsel for plaintiffs. The Master will also accept any additional in camera ex parte communication from Dole, if Dole deems it necessary to provide privileged information to support its position.
None here have cause to wonder at the impact legislative, regulatory, and judicial decisions lacking such balance have had in Mississippi and Louisana, particularly, since Katrina.
It’s abundantly clear the insurance industry has been sausage-making with a legal strategy in both states. Gibson Dunn represented Lexington (AIG) when the 5th Circuit heard the Canal Breaches appeal – and this statement from one of the firm’s attorneys suggests only when pigs fly will there be an end to the sausage-making justice here.
The lawyers take a long view of the law, he said, actively looking for ways to shape it in their clients’ favor — even if it takes years to do it.
We take some small comfort in the glimmer of hope suggested by a pending decision to impose santions on Ungarino & Eckert for misconduct in a Louisiana case. Our reader sent the related case documents after first sending those from Hawaii and both the case and order are here.
Join me now in a virtual standing ovation to the most honorable Judge presiding over Hawaii’s first circuit, Gary Won Bae Chang. Judge Chang, take a bow. Bravo! Encore!