Two of the most prestigious and most expensive Biglaw firms just got caught doing the kind of thing they tell you not to in professional responsibility class.
Earlier this week, Judge Marc T. Treadwell of the US District Court for the Middle District of Georgia ordered attorneys from Skadden, Arps, Slate, Meagher & Flom and Kirkland & Ellis to pay $2 million in sanctions for withholding evidence and discovery abuse in a False Claims Act suit that settled in the middle of trial. And that $2 million? Well, the two firms that sit at the top of the Biglaw pyramid are now bankrolling the professional-responsibility curriculum they apparently forgot to review, because it’s going to fund ethics and professionalism instruction at Georgia’s accredited law schools.
So what’d they do? Accord to Judge Treadwell’s January order, he had to sanction them a whopping three times for withholding evidence. I don’t know what your childhood was like, but it was never a good thing when your mom got to three. Turns out that is also true of federal judges. “Never has the Court thrice-sanctioned a party for withholding evidence,” he wrote. “At this point, the Court is not sure” what else to do about it.
Amongst the other discovery abuse, the judge called attention to an expert witness who dressed up a walled-off consultant’s testing as “my own independent testing.” Prudent lawyers, Treadwell noted, build “a stout wall” between their consultants and their testifying experts. Here, “there was no wall at all.”
When that expert tried to explain away a false sworn declaration by claiming he’d simply forgotten, Treadwell delivered a benchslap for the ages:
I see no excuse for [the expert], assisted by [counsel], sitting down, crafting that declaration to respond to these very issues, and then say something that is not true. And the excuse that “I forgot” is not credible and I don’t believe it. … [I]f that kind of excuse was good enough at that stage of a dispute, when all eyes are on everything, … lawyers could get away with anything.
He described the ensuing defense as a slow-motion collapse “a defense in depth, collapsing to a new line of defense as each crumbled” until “the retreat began to look like a rout.”
Treadwell did not spare the Biglaw giants in his decision. Prestige, it turns out, is no defense to a discovery obligation and neither, as the judge is happy to explain, is “I forgot.”
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post Skadden And Kirkland Earn A $2 Million Benchslap For Hiding Evidence appeared first on Above the Law.
Two of the most prestigious and most expensive Biglaw firms just got caught doing the kind of thing they tell you not to in professional responsibility class.
Earlier this week, Judge Marc T. Treadwell of the US District Court for the Middle District of Georgia ordered attorneys from Skadden, Arps, Slate, Meagher & Flom and Kirkland & Ellis to pay $2 million in sanctions for withholding evidence and discovery abuse in a False Claims Act suit that settled in the middle of trial. And that $2 million? Well, the two firms that sit at the top of the Biglaw pyramid are now bankrolling the professional-responsibility curriculum they apparently forgot to review, because it’s going to fund ethics and professionalism instruction at Georgia’s accredited law schools.
So what’d they do? Accord to Judge Treadwell’s January order, he had to sanction them a whopping three times for withholding evidence. I don’t know what your childhood was like, but it was never a good thing when your mom got to three. Turns out that is also true of federal judges. “Never has the Court thrice-sanctioned a party for withholding evidence,” he wrote. “At this point, the Court is not sure” what else to do about it.
Amongst the other discovery abuse, the judge called attention to an expert witness who dressed up a walled-off consultant’s testing as “my own independent testing.” Prudent lawyers, Treadwell noted, build “a stout wall” between their consultants and their testifying experts. Here, “there was no wall at all.”
When that expert tried to explain away a false sworn declaration by claiming he’d simply forgotten, Treadwell delivered a benchslap for the ages:
I see no excuse for [the expert], assisted by [counsel], sitting down, crafting that declaration to respond to these very issues, and then say something that is not true. And the excuse that “I forgot” is not credible and I don’t believe it. … [I]f that kind of excuse was good enough at that stage of a dispute, when all eyes are on everything, … lawyers could get away with anything.
He described the ensuing defense as a slow-motion collapse “a defense in depth, collapsing to a new line of defense as each crumbled” until “the retreat began to look like a rout.”
Treadwell did not spare the Biglaw giants in his decision. Prestige, it turns out, is no defense to a discovery obligation and neither, as the judge is happy to explain, is “I forgot.”
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
