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Federal Judge Gives Civ Pro Lesson, Sanctions Ex-Client for Mistaken Claim Dickstein Missed Deadline

Posted Nov 27, 2012 4:28 PM CDT
By Martha Neil

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Warning a former client of Dickstein Shapiro that future sanctions could be forthcoming if continues to disregard local discovery rules in Washington, D.C., before making dubious motions, a federal judge on Monday quickly disposed of the company's motion for partial summary judgment against the law firm in a $250 million malpractice case.

U.S. District Judge John D. Bates also nixed a motion by the ex-client, Encyclopaedia Brittanica, for sanctions for purportedly evasive discovery behavior by the law firm, saying that Dickstein had done absolutely nothing wrong. In a blistering Monday opinion (PDF), the judge didn't penalize Encyclopaedia Brittanica for making this sanctions motion, saying that it fell short of the requisite "level of recklessness or bad faith required for the imposition of sanctions," even though it "reflects a careless approach to the substantive law and local rule obligations, and a disregard of this court’s warning against filing unnecessary discovery motions."

But, after noting that local rules call for the movant to confer with opposing counsel before seeking sanctions and saying that the company has repeatedly failed to do so, the judge lowered the boom concerning a related earlier filing, which he called "frivolous."

The earlier motion asked the court to determine that Dickstein Shapiro had conceded a motion for sanctions by Encyclopaedia Britannica, because the law firm didn't file a response on time. Except, it turned out, the law firm had filed a response on time, the judge wrote. He also noted that "Britannica has failed to point to a shred of misconduct by Dickstein Shapiro’s attorneys" before offering a brief lesson on the Federal Rules of Civil Procedure.

"Because it missed the Federal Rule of Civil Procedure provision that adds three days to the time to file an opposition when service is made electronically, see Fed. R. Civ. P. 6(d), Britannica believed that Dickstein’s opposition to the motion for sanctions was due on August 14," explained Bates. "On August 16, without conferring with Dickstein ... Britannica filed a motion to treat the motion for sanctions as conceded. Britannica was simply wrong on the law."

Bates said the company must pay the law firm's legal bill for responding to the motion mistakenly claiming that it had missed the deadline.

Concerning the partial summary judgment motion sought by the company, the judge explained Monday that he was denying the motion because it was based on an erroneous understanding of substantive law.

The law firm is not judicially estopped from taking a contrary position in the current malpractice case to what a Dickstein attorney may have said while representing Encyclopaedia Brittanica in an underlying patent dispute, Bates said, because Dickstein was not a party in the patent matter.

"The logic of judicial estoppel unravels in the malpractice context," wrote the judge. "An entity acting as a lawyer to a client is fundamentally differently situated than an entity acting in its own interest in subsequent malpractice litigation. The positions a law firm takes in those two contexts are necessarily in significant tension—as a lawyer representing a client, a firm defends the strengths of the client’s position while in malpractice litigation it seeks to demonstrate the opposite, i.e., that the client would have lost. A lawyer cannot be faulted for this inherent inconsistency, and where a party cannot be faulted, applying judicial estoppel is often inappropriate."

Hat tip: Blog of Legal Times.

Earlier coverage:

ABAJournal.com: "Dickstein Shapiro Faces $250M Suit Claiming Botched Patent Application"

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