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'Immature sniping' by BigLaw lawyers could lead to sanctions if it continues, federal judge says

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A federal judge in Washington, D.C., has said she has “zero tolerance for immature sniping and sharp litigation practices,” yet “that behavior continues” in a case involving Walgreens and its former law firm. Image from Shutterstock.

Updated: A federal judge in Washington, D.C., has said she has “zero tolerance for immature sniping and sharp litigation practices,” yet “that behavior continues” in a case involving Walgreens and its former law firm.

U.S. District Judge Ana C. Reyes of the District of Columbia appeared to be directing her ire at lawyers from Munger, Tolles & Olson and Reed Smith, report Law360 and Bloomberg Law.

She issued her warning in a Nov. 17 minute order posted by Reuters.

Reyes ordered the firms to forward her notice to client representatives, including the clients’ heads of litigation.

“Any future lack of professionalism and basic civility will result in a show-cause order as to why the court should not impose monetary sanctions on the offending party,” she warned.

Reyes said the lawyers’ bad behavior was reflected in an “Exhibit 2” filed by Walgreens, which consisted of an email exchange between Reed Smith partner Frederick Robinson, who represents Walgreens, and Munger Tolles partner Bethany Kristovich, who represents Crowell & Moring.

In the Exhibit 2 email, Robinson asks for an agreement on supplemental briefing of no more than four pages that would be due in early December. Kristovich’s reply seeks an earlier January hearing date on a motion to dismiss to accommodate schedules. They are unable to come to an agreement in the series of emails that follow.

“The court is at a total loss to understand what counsel hope to gain by the positions reflected in Exhibit 2,” Reyes wrote. “Neither a single four-page brief nor the date of a hearing will be dispositive in a $600-million-plus case with briefing that already runs into the hundreds of pages. And since the counsel involved each likely bill at well over $1,500 per hour, not only is this approach pointless, but it is also an immense waste of client money.”

Reyes said the lawyers “should consider whether it is good business practice to bill their clients for the time expended on the back-and-forth reflected in Exhibit 2.”

Kristovich did not immediately respond to the ABA Journal’s requests for comment made in an email and voicemail. Robinson said there would be no comment on the minute order.

In the litigation, Walgreens is seeking to vacate a $642 million arbitration obtained by health insurer Humana for overcharges. Walgreens contends that Crowell & Moring breached its fiduciary duty by providing advice to Walgreens on pricing policies and then representing Humana in the lawsuit alleging pharmacy overcharges. Crowell & Moring has withdrawn from the case.

In the Exhibit 2 email exchange, Kristovich said she thinks that Robinson’s supplemental briefing request is too late, and the proper procedure is to “file a sur-reply.”

But she is willing to accede to Robinson’s request if he will agree to her request for a different hearing date on the motion to dismiss. Robinson protests that scheduling conflicts had already been worked out, and Kristovich’s proposed dates pose “a significant problem for our client representative, who will be out of the country.”

Robinson said he is still willing to discuss the supplemental briefing schedule without tying it to a hearing date. Kristovich refuses.

Reyes said this is the proper response to Robinson’s request: “If you would like additional briefing on the Rule 81 topic, please let the court know that we take no position on [or oppose] your request and want to preserve our argument that you have waived the issue by not raising it earlier. You can also represent that, if the court agrees to accept additional briefing, we agree to four pages and to the following schedule [insert agreed-upon schedule].”

Reyes said this is the proper response to Kristovich’s request: “Of course we will work with you and the court to find a new date. Please note that the dates from [insert dates] do not work for us because our client representative is out of the country.”

Updated Nov. 21 at 12:25 p.m. to report that Reed Smith partner Frederick Robinson declined to comment.

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