Standing on the balcony in Act 2, Scene 2, Juliet laments Romeo’s last name. If only he were not a Montague! After all, “What’s in a name? That which we call a rose by any other name would smell as sweet.”
Her point is that the essence of someone or something remains the same, whatever his or its name. Apparently, her point was lost on Cooley LLP senior counsel Jon Graves as he dealt with a problem in representing Medical Technology Associates II (MedTech) in a patent dispute with its former chief executive, Carl Rausch.
Jon’s problem was that he had testimony--ten letters and emails—he wanted to submit in support of MedTech’s opposition to Rausch’s motion to compel arbitration. But the deadline for submitting testimony had come and gone. Worse, Jon had expressly told the court he didn’t intend to submit any further testimony.
That’s when he had a crackerjack idea. He would submit the testimony—all ten letters and emails—but he wouldn’t call it testimony. He would call it something else! He filed a 61-page Submission in Response to the Court’s May 17, 2022, Order. The opening paragraph was consistent with the title, stating that the submission was intended to explain MedTech’s decision not to present further testimony.
The filing did, in fact, contain seven pages of legal argument. The problem, in the view of defendant Rauch and his counsel, was that the remaining 54 pages consisted of letters and emails that had never been submitted as evidence.
Rauch and his counsel fired off a letter to the court arguing that Jon’s Submission had “poisoned the well,” was an attempt to circumvent the post-hearing briefing schedule and evade the court’s page limits, was submitted in “blatant disregard” of the court’s orders, and contained exhibits that hadn’t been identified in the plaintiff’s prehearing exhibit list.