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It is huge that a lawyer would disclose in a public setting such important confidential numbers. I even have trouble seeing how something like that could be "ac
by grellas 10y ago
It is huge that a lawyer would disclose in a public setting such important confidential numbers. I even have trouble seeing how something like that could be "accidental". It is basically a force of habit among experienced litigators to think and to say, in any number of contexts, "I know this may be relevant but I can't discuss it because it is the subject of a protective order" or "I know the attorneys know this information but it was disclosed under the protective order as being marked for 'attorneys' eyes only'". In all my years of litigating, I don't believe I have ever heard a casual slip on such information, even in otherwise private contexts (e.g., attorneys are discussing with their own client what an adverse party disclosed and are very careful not to disclose something marked for "attorneys' eyes only"). Certainly willful disclosures of this type can even get you disbarred.
But the significance of this breach is not the only thing that caught my eye.
These litigants have been entrenched in scorched-earth litigation for years now in which the working M.O. for both sides is to concede nothing and make everything the subject of endless dispute. Big firm litigators will often do this. It is a great way to rack up bills. Clients in these contexts do not oppose it and very often demand it. And so a lot of wasteful lawyering happens just because everyone understands that this is an all-out war.
To me, then, it seems that the big problem here (in addition to the improper disclosures of highly important confidential information in a public court hearing) was the resistance by the lawyers who did this to simply acknowledging that a big problem existed that required them to stipulate to getting the transcript sealed immediately. Had they done so, it seems the information would never have made the headlines. Instead (and I am sure because it had become the pattern in the case), they could not reach this simple agreement with the other lawyers to deal with the problem but had to find grounds to resist and fight over it.
I know that we as outside observers have limited information upon which to make an assessment here and so the only thing we can truly say from our perspective is "who knows". Yet, if the surface facts reflect the reality, then it is scarcely believable that the lawyers could have so lost perspective as to take this issue to the mat, resulting in such damage to a party. Assuming the facts are as they appear on the surface, this would be very serious misconduct and I can see why Judge Alsup is really mad that it happened.
- Natsu 10y agoSuppose, for a moment, the judge believes that there's at least an open question as to whether the revelations were willful. Can the later conduct, in which they acted in such a way as to double down on the mistake, be used to support a finding that the conduct was willful?
- grellas 10y agoYes, the entire pattern of behavior is relevant, though I would note that judges are highly reluctant to ascribe bad motives to distinguished litigators (and the lawyer involved here fits in that category) and so I would be surprised if the judge took a super-harsh approach in spite of being upset over this. But, again, who knows?
- Natsu 10y agoTaking all the facts given us at face value for now, what is the range of punishments the court might impose here, along with what your gut feeling says the most likely outcome(s) are? Based on the quotes, one thing the court appeared to contemplate was forcing them to inform all future courts of their conduct in this case.
- grellas 10y agoHard to say here. Federal courts have very broad discretion to impose sanctions for violations of their orders, including those authorized by the Federal Rules of Civil Procedure and also those based on their inherent powers. We are, after all, dealing with contempt of a court order, which is very serious. I would say it is likely here that the court would refer this to the State Bar with a request that it be investigated and this would pose quite a risk for one or more of the attorneys that ethical sanctions would be imposed (these can range from private to public censure to suspension to disbarment, though here I don't think the more extreme remedies would apply unless evidence surfaced to show that this was somehow deliberate). A standing order to the firm or to one or more of the attorneys that they would have to do a formal filing in future cases (say, for a period of x years) disclosing this misconduct is also something I could envision here. This would cause large reputational harm to the lawyer(s) involved and would be fitting, doable, and probably appropriate for such a serious violation. Monetary awards/fines are also possible, though I cannot imagine an award that could reflect the actual damage caused to Google - such awards are usually limited to attorneys' fees and costs incurred in obtaining the contempt order. Discovery-related sanctions are also often imposed in live cases (e.g., limiting the use of certain evidence or treating some fact as admitted that is adverse to the party causing the violation or some such thing), but I don't think would apply here. Jailing of an offending party is also used in civil contempt but only as needed to compel compliance with an order (e.g., you will stew in jail until you disclose your non-protected sources for the facts in this story as you have been previously ordered to do) - again, these wouldn't apply here. So, I think the main sanctions would likely involve those hitting the reputations of the attorneys, either in future court proceedings or through State Bar sanctions. These, by the way, are not trivial. No matter how good a lawyer or a firm, being seen as tarnished can cost you clients, job opportunities, etc., not to mention public humiliation and embarrassment (no small thing for prominent lawyers).