Adventures in the Law: Careful with That Petard!

When Hamlet declared, “‘tis the sport to have the engineer hoist with his own petard,” he wasn’t talking about an actual petard—a small, often homemade bomb. He was speaking figuratively, observing that it’s amusing to see someone caught in a trap he set for someone else.

It’s hard to read a certain report by a special master in a Texas patent case without thinking of Hamlet’s observation. The report chronicles the misadventures of a law firm associate who set a trap for a deposition witness, only to find himself the victim, along with his colleagues, his firm, and his client.

The Trap

The associate—we’ll call him Randy—was part of a team representing the plaintiff company. He was taking the deposition of an executive at a company that, according to the defendant company, had an invention predating the plaintiff’s patents. If correct, the defendant’s argument would render the patents of the plaintiff, Randy’s client, invalid. Therefore, the sequence of dates was crucial.

Randy came up with what he apparently thought was a crackerjack idea: When it was time for questions about a schematic drawing, Randy would show the witness a copy of the drawing and ask him to confirm the date on the drawing. What the witness wouldn’t know was that Randy had surreptitiously altered the date. After the witness had confirmed the false date, Randy would—no doubt dramatically˗˗reveal that the witness had confirmed an incorrect date. The lesson, as Randy saw it, was the unreliability of dates on such drawings.

But the defendant company drew a different lesson from the exercise: that Randy and his firm had violated the rules of professional responsibility and that they and their client were deceitful and dishonest. The defendant company moved for sanctions.

Randy and a Colleague Dig the Hole Deeper

In the ensuing proceedings, Randy represented to the special master that “he did not ask anyone else at the firm” about his plan to alter the document. That may have been courageous on Randy’s part, but it was untrue, as the special master soon discovered. The emails produced in discovery revealed that Randy had disclosed his plan in advance to a second attorney in his firm, who had warned Randy that he needed a senior attorney’s approval.

The emails further revealed that Randy had, in fact, sent an email to a third attorney seeking that approval. But at the hearing, that third attorney failed to inform the special master that Randy had, in fact, sent him the email, an email that he had received but failed to read.

The Outcome

Needless to say, the outcome wasn’t what Randy expected. The opposing party didn’t throw up its hands and grudgingly concede that dates can, indeed, be unreliable. Randy’s superiors at the firm didn’t praise his ingenuity. His client didn’t heap praise on him or his firm.

Instead, the special master ruled in favor of granting the defendant’s motion for sanctions, which included the following:

1. The client can’t dispute the dates on the schematic drawings.
2. The client must forfeit one hour of trial time in the patent suit.
3. In addition to the ethics seminars scheduled for Randy’s entire firm, he and the third attorney must complete 30 more hours of ethics training.
4. Randy’s firm must pay all fees and costs incurred by the special master.
5. Randy’s firm must pay all the defendant’s fees and costs in connection with its motion for sanctions, including discovery.

The Lesson

Before setting a trap for someone else, remember Hamlet’s observation: You might be the one who gets caught in the trap, to the amusement of everyone else.