The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
Aug. 9 — A Delaware federal judge indicated that he may order a medical device manufacturer to cover the fees an adversary incurred in responding to a baseless motion that accused a prominent Kirkland & Ellis litigator of an unethical scheme to delay a trial ( W.L. Gore & Assoc. v. C.R. Bard, Inc., 2016 BL 249023, D. Del., No. 11-515-LPS, 7/27/16 ).
The warning came at the end of a July 27 opinion that dismissed a sanctions motion against attorney Steven Cherny, who gained fame after winning a patent infringement judgment of nearly $1.5 billion.
Cherny secured that award in an earlier lawsuit against W.L. Gore & Assoc., the plaintiff that accused Cherny of misconduct in this case.
Gore accused Cherny and his client of engaging in “a pattern of unethical conduct that ultimately achieved [their] intended goal of disrupting a long-scheduled jury trial.”
Gore alleged that Cherny waited until the “eleventh hour” of litigation to present evidence from an unrelated Arizona case that allegedly bolstered his client's defense to Gore's patent infringement claims, which led the court to reluctantly grant a continuance on the day trial was set to begin.
Judge Leonard P. Stark of the U.S. District Court for the District of Delaware wasn't convinced by Gore's allegations, which Cherny and his client characterized as a “confected conspiracy theory” based on “false accusations against respected members of the Bar.”
The evidence in question, an expert report that Gore itself had commissioned, “was a Gore document which Gore failed to locate and produce in this litigation, despite being responsive to Bard's discovery requests,” the court noted. “It is unreasonable for Gore to hold Bard to a higher standard for remembering and finding a Gore document from the Arizona litigation when Gore itself did not (in the relevant time) find and produce the pertinent document.”
Stark said it was entirely plausible that Cherny “simply did not recall” the belatedly discovered evidence from the Arizona case before it was uncovered by Cherny's client shortly before trial.
“Gore's contrary suggestion, on the other hand, is entirely implausible,” Stark wrote. “In Gore's telling, [Cherny and his co-counsel] were consciously aware of a likely successful defense for their client to an approximately $100 million lost profits damages claim by Gore, yet those attorneys deliberately withheld raising that defense until essentially the eve of trial.”
“Such a strategy would be risky in the extreme,” Stark said. “It would entail a high likelihood of a court excluding the defense as untimely,” he added. “And if counsel's ‘lies' were discovered, it would risk counsel's reputations and potentially their careers.”
The court also dismissed Gore's allegations that Cherny's client breached its duty to honor a protective order by having another Kirkland & Ellis attorney examine court records kept under seal, including the expert report at issue.
Stark said the evidence showed that the Kirkland & Ellis lawyer took care to avoid reviewing materials that were marked as sealed.
After denying Gore's sanction motion, Stark said he would entertain a request to order Gore to pay the attorneys' fees Cherny's client incurred in responding to the sanctions motion.
“This may well be a request that should be granted,” Stark wrote. “Gore's Motion leveled serious accusations of misconduct against highly-experienced attorneys and, as the discussion above demonstrates, the record does not support these allegations.”
Stark requested briefing on the fee request.
Young Conaway Stargatt & Taylor LLP and Faegre Baker Daniels LLP represented plaintiff W.L. Gore & Assoc. Morris, Nichols, Arsht & Tunnell LLP and Kirkland & Ellis LLP represented defendant C.R. Bard Inc.
To contact the reporter on this story: Samson Habte in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Ethan Bowers at email@example.com
Copyright © 2016 American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)