4 ms·

Yes, the entire pattern of behavior is relevant, though I would note that judges are highly reluctant to ascribe bad motives to distinguished litigators (and th

by grellas 10y ago

Yes, 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 ago
Taking 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 ago
  Hard 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).
  - sandworm101 10y ago
    My civpro prof was a collector of Rule11 stories. He liked judges who observed that the rule's "may" language doesn't forbid inventive sanctions. This isn't a rule11 situation, but if I were the judge, in exchange for not reporting the conduct to the local bar, I'd make them all go without cellphones while in the courthouse .. for a year. There are too many billions being thrown around in this litigation for any fine to matter.
chris_wot 10y ago
The judge has already eviscerated that lawyer.
- Natsu 10y ago
  Can you point us to a source on that? Preferably the court's orders, if possible. I'm wondering if that's on Groklaw somewhere? I've heard there's still 'invisible' activity over there regarding files getting uploaded even though PJ is gone now.
  - idbehold 10y ago
    From the article: > “Even assuming it’s a violation of the protective order...” Haag began to say, when Alsup interrupted her with an exasperated noise. > “Your firm is one of the biggest litigators in America,” said the judge. “Next time you go into a court somewhere and you ask for confidential documents, I hope someone raises this and says, ‘Your firm violated that order, and why should we give your firm access?’” > “She just blurted out the two numbers that mattered. She just blurted it out,” said Judge Alsup. “If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.”
    - robotresearcher 10y ago
      A couple of zingers, for sure, but not exactly sanctions for a serious breach of professional conduct.
      - chris_wot 10y ago
        But shows the judge's mind.

by grellas 10y ago

Natsu 10y ago

Taking 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 ago
Hard 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).
- sandworm101 10y ago
  My civpro prof was a collector of Rule11 stories. He liked judges who observed that the rule's "may" language doesn't forbid inventive sanctions. This isn't a rule11 situation, but if I were the judge, in exchange for not reporting the conduct to the local bar, I'd make them all go without cellphones while in the courthouse .. for a year. There are too many billions being thrown around in this litigation for any fine to matter.

chris_wot 10y ago

The judge has already eviscerated that lawyer.

Natsu 10y ago
Can you point us to a source on that? Preferably the court's orders, if possible. I'm wondering if that's on Groklaw somewhere? I've heard there's still 'invisible' activity over there regarding files getting uploaded even though PJ is gone now.
- idbehold 10y ago
  From the article: > “Even assuming it’s a violation of the protective order...” Haag began to say, when Alsup interrupted her with an exasperated noise. > “Your firm is one of the biggest litigators in America,” said the judge. “Next time you go into a court somewhere and you ask for confidential documents, I hope someone raises this and says, ‘Your firm violated that order, and why should we give your firm access?’” > “She just blurted out the two numbers that mattered. She just blurted it out,” said Judge Alsup. “If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.”
  - robotresearcher 10y ago
    A couple of zingers, for sure, but not exactly sanctions for a serious breach of professional conduct.
    - chris_wot 10y ago
      But shows the judge's mind.