BigLaw firm made 'Herculean' effort to avoid discovery obligations, judge concludes
A superior court judge in Alaska has entered a judgment against Holland & Knight and ordered a trial on damages after finding that the law firm engaged in “truly astounding” failure to comply with discovery orders in a lawsuit alleging malpractice by the firm.
Noting Holland & Knight’s claim that it had engaged in a “Herculean” effort to comply with discovery, Judge Paul A. Roetman, a superior court judge for the Second Judicial District in Alaska, reached the opposite conclusion.
“In full view, H&K’s actions have evidenced a ‘Herculean’ effort not to comply with discovery,” he said.
“H&K stunningly fails to appreciate or recognize their own serious failures to comply with the discovery rules in this court’s orders or appreciate their significance,” Roetman wrote in the Nov. 15 order. “Court orders are not suggestions, and they are not aspirational goals that a party should treat as a guideline. They are requirements that must be met.”
Roetman noted that he had previously granted two motions to compel discovery filed by the suit plaintiff, the Kaktovik Inupiat Corp. The Kaktovik Inupiat Corp. had claimed in its suit against Holland & Knight and former partner Walter Featherly that the defendants provided bad advice about business transactions with a joint venture partner that resulted in a “catastrophic” $6 million arbitration award against the Kaktovik Inupiat Corp. for damages and attorney fees.
Referring to Featherly and Holland & Knight jointly as “H&K,” Roetman said the defendants had disclosed some materials, but the disclosures were repeatedly late and incomplete. Both defendants were represented by the same firms.
At one point, Holland & Knight said it no longer had the client file, and the Kaktovik Inupiat Corp. had the relevant documents. After the first order compelling discovery, Holland & Knight disclosed a “residual file” with client materials that included “duplicative material, irrelevant documents and over 37,000 pages of privileged documents of other clients,” Roetman said.
The second order compelling disclosure said Holland & Knight had “relied on a number of euphemisms” to describe their disclosure efforts, such as, “We continue to search across platforms,” and “We have searched ‘H&K’s archived emails.”
When Holland & Knight did give some specifics of its searches, “it was deficient and far too late, occurring years after the case was initiated,” Roetman wrote when he granted the second motion to compel July 3.
Summarizing what he termed “preliminary findings,” Roetman said Holland & Knight had information and documents responsive to the Kaktovik Inupiat Corp.’s requests for production but did not disclose this before its amended disclosures July 10.
The amended disclosures said the firm’s documents and management system did not activate self-delete, and it was designed to retain emails of departed attorneys indefinitely.
Roetman went on to conclude that Holland & Knight acted willfully, and its repeated violations of court orders “seriously prejudiced” the Kaktovik Inupiat Corp. Citing findings in his second order to compel, Roetman said Holland & Knight had been playing “what amounts to a ‘shell game.’”
Featherly first began representing the Kaktovik Inupiat Corp. in 2012 when he was at the firm Patton Boggs, according to the Kaktovik Inupiat Corp.’s first amended complaint. The representation continued after he joined Holland & Knight until the firm closed its Anchorage, Alaska, office in 2020.
Holland & Knight and Featherly did not immediately respond to requests for comment. The ABA Journal tried to reach Featherly through an email address and phone number listed by the Alaska Bar Association.
Lawyers from Davis Wright Tremaine and Cashion Gilmore & Lindemuth represented the defendants, according to Law360, which had coverage of the order.
The Journal sought comment from Robert J. Maguire, chair of Davis Wright Tremaine’s litigation practice, and Cashion Gilmore partner Chester Gilmore. They did not immediately respond.
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