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Voice of Experience

Voice of Experience: December 2023

Adventures in the Law: Testimony by Any Other Name

Norman Gardner Tabler Jr

Adventures in the Law: Testimony by Any Other Name
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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.

Clearly persuaded by the defendant’s letter, the court issued a show cause order, directing MedTech and Jon to explain why sanctions should not be imposed.

Jon responded that he had filed his Submission in response to the court’s “directive” that he explain why MedTech didn’t intend to call any additional witnesses. He offered four explanations: 1) MedTech believed that testimony and exhibits addressed questions raised by the court; 2) the court’s questions were addressed by pre-suit correspondence already filed; 3) MedTech sought admission of that correspondence into the record; and 4) MedTech believed it need not prove fraud.

Jon’s response clearly reflected his sense of impending doom. Why else include the report of Gregory P. Joseph, author of the textbook Sanctions: The Federal Law of Litigation Abuse, “as a sanctions expert?” Joseph’s report, of course, argued against the imposition of sanctions. It included the following remarkable paragraph:

In light of the damaging effects sanctions would have on a lawyer with no history of sanctionable conduct, in my opinion, to a reasonable degree of certainty, the court should decline to impose sanctions of any sort on him, his law firm, or his client.

You read that correctly: Mr. Joseph argued that if a lawyer had no previous sanctions, he should not be sanctionedThink about that.

Jon’s sense of doom proved justified. In a ruling that can only be described as blistering, Judge Baylson listed the several ways Jon’s Submission offended him. First, the deadline for submitting evidence had passed. Second, Jon had expressly represented that MedTech would submit no more testimony. Third, Jon’s approach conveniently allowed him to submit evidence without calling the appropriate individuals as witnesses. Fourth, if those individuals weren’t called as witnesses, the defendant couldn’t cross-examine them.

Worse yet, the whole basis of Jon’s explanation was erroneous because, the judge wrote, “the Court never­­­ asked Plaintiff’s counsel ‘why’ Plaintiff did not want to present testimony.” Jon’s Submission was a 61-page answer to a question that had never been asked!

In Judge Baylson’s view, Jon was guilty of “hubris and disregard of procedural rules.” His actions merited sanctions. Those sanctions included: 1) striking the offending Submission: 2) an order to attend six hours of CLE courses on federal practice and procedure: and 3) Jon’s personal payment of the reasonable expenses, including attorneys’ fees, incurred by the defendant because of the Submission.

So, it seems, Jon should have heeded Juliet’s message. Just as a rose by any other name smells as sweet, testimony by any other name still smells like testimony.

The case is Medical Technology v. Rauch, E.D. Penn.

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