TRUSTEES OF COLUMBIA UNIVERSITY v. GEN DIGITAL INC.
Oral Argument — 01/05/2026 · Case 24-1244 · 47:10
0:00
Judge Dyk
And that leads us to number 24, 1244,
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trustees of Columbia University versus General District 8.
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Okay, Mr. Conlon.
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Appellant Attorney
Good morning, Your Honors, and may it please the Court.
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This appeal involves an extraordinary contempt sanction against Queen Emanuel
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for its failure to comply with a March 15, 2022 order
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to disclose a host of attorney-client communications on the record by the next day.
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Under Fourth Circuit law, which governs this issue,
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that contempt order cannot stand unless the March 15 order that underlies it is,
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it can't stand if the order that underlies it is invalid.
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That order was invalid both substantively and procedurally,
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and the departures from due process and party presentation
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continued with the contempt sanction itself.
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One way or another, the contempt sanction must be reversed.
0:57
Now, first, on substance,
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there are multiple problems with the March 15 order,
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starting with its flawed premise that a conflict prevented Queen
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from simultaneously representing Norton and its former employee, Dossier.
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There was no such conflict.
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To be sure, Dossier's deposition testimony was not unalloyedly helpful for Norton.
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That is often the case with employees with employer-funded joint representations,
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that the testimony is something of a mixed bag,
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is utterly commonplace,
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and not the kind of real conflict that precludes a joint or a common representation.
1:36
Jointly represented employees show up on the opposing side's witness list
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with some regularity without triggering a disqualifying conduct.
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Here, no one, including Columbia and its lawyers,
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raised any suggestion of a conflict when Quinn Emanuel represented Dossier
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in a nearly seven-hour deposition back in August 2014.
1:58
Judge Prost
Okay.
1:59
Now, I'm sorry, we're already tired after this morning,
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but let me ask you about, you give us,
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and I'm grateful for that kind of a Chinese menu or cheesecake factory,
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about all the different things that are wrong,
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and so we could do less and we could do more.
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So this question is about how much we have to do,
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assuming we agree with at least some of your arguments.
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So on the due process front, if there's no process,
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and we have to go undo the contempt order,
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but the original order, the disclosure order,
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can that be left?
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Is that satisfactory to just go to the contempt order
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and say that's problematic?
2:36
Appellant Attorney
So, I mean, we did give you something of a Chinese menu.
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I mean, you know, I'm here representing only Quinn Emanuel.
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So from the perspective of my client,
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sort of anything that gets rid of the contempt sanction
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is a pretty good day for us.
2:48
So if you want to go right to that, I think that is sufficient,
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and I'm happy to address that.
2:53
I do think it makes some sense, though, to start with...
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Judge Prost
No, and I don't disagree with that.
2:58
Okay, so let's...
2:59
Let's start where you started.
3:00
Right.
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If we see there's a due process violation,
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why isn't the result, therefore, not to undo it or to reverse it
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or to decide here whether there was a conflict,
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but to send it back to the district court
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for an opportunity for the parties to brief that issue before her
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and allow her to reach another decision,
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which would obviously be reviewable, God forbid, once again?
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Why isn't that the better course than reversing?
3:25
Appellant Attorney
So, I mean, God forbid, indeed.
3:27
And I guess from...
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From my perspective,
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I'm not even sure you can quite sort of unring the bell at this point
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as to the March 15th order.
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Because the March 15th order, again,
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it is resolving motions in limine filed by Norton.
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And so I don't think there's any other word for it than gratuitously.
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It starts in footnote 7,
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and then it's picked up in the language of the order.
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She then orders this incredible disclosure
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of attorney-client privileged information.
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Now,
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I don't think...
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I don't think there was any conflict before that order.
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But once that order's out there,
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that scrambles everything.
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Because at that point,
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Quinn Emanuel is in an impossible position.
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I think the only way to understand her order
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is that she has held that the attorney-client privilege is already gone.
4:17
And there's a lot of back and forth about who waives it
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and all of that kind of stuff.
4:20
But the gist of her March 15th order
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is that the engagement letter is void,
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that the attorney-client privilege,
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which has been vitiated retroactively
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to some unspecified time when the conflict arose.
4:34
And so at that point,
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I mean,
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everything changes at that point.
4:39
Fair enough.
4:39
Judge Prost
So if we unravel that order,
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but we do it on the basis
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that there was no opportunity to respond,
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you're not saying she wouldn't have had authority.
4:48
You would disagree where she got,
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but to raise the issue at least
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and give the parties an opportunity to respond.
4:54
So we unring the bell,
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but we allow for a do-over.
5:00
Appellant Attorney
Again, I think it's hard for me to get my head around
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what a do-over looks like at this point
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when Dossier is now talking to Columbia's lawyers
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and Queen Emanuel is out of the case effectively
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and Latham and Watkins is representing Norton.
5:16
I just think it's hard to unring the bell here.
5:18
But just to underscore, I think, the due process problem here,
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I think it is worth contrasting what happened
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with this extraordinary order on March 15th
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with what happened when Norton...
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Judge Reyna
Counsel, when the March 15th order was issued,
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did Quinn demand or request an immediate hearing?
5:40
Appellant Attorney
So what it did is on March 16th,
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so the next day, which is the date they were given to respond,
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they filed a two-page document
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that basically said we're not going to comply.
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It's a very brief document.
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They invoked Attorney Klein privilege as well,
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but they said we're not going to comply.
5:55
Then exactly one week later, on March 22nd,
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they filed a motion for reconsideration
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pointing out due process problems and substantive problems
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and asked for expedited briefing on that
6:08
without getting any additional briefing
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the district court denied at the same day.
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Judge Reyna
So does the privilege belong at that point to Dr. Dossier or to Quinn?
6:20
Appellant Attorney
So it belongs to Dr. Dossier,
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but the problem, at least in my estimation,
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is that the order that she's issued,
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issued on March 15th,
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actually is only, I think, understandable
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as saying the privilege is gone retroactively.
6:36
So nobody has it going back to 2017.
6:40
And that's actually consistent, for what it's worth,
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with the way Columbia itself described the effect of her March 15th order.
6:47
This is at Appendix 43-922,
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where when they're doing their motion to show cause for contempt,
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this is later,
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they describe her March 15th order as finding,
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quote,
6:59
fine privilege between Dossier and Norton's counsel
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during the period when counsel's reputation of Norton
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resulted in a conflict with its purported representation of Dossier.
7:08
So the way I understand the order is,
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I mean, you can't comply with it without going to Dossier
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and having Dossier sort of waive an attorney-client privilege,
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but the premise of the order is that the privilege is already gone.
7:21
That's why she thinks that she can order Quinn Emanuel.
7:24
Judge Reyna
Well, Dr. Dossier could have waived it,
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but could have also claimed it.
7:30
Appellant Attorney
Yes, but I think the second this order comes down,
7:33
Quinn's in an impossible position, right?
7:35
Because they have,
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and this didn't happen.
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I want to be clear.
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I don't want to be accused of misrepresentation.
7:39
Judge Reyna
It sounds to me like you're saying at that point,
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there was nothing that you could do.
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The decision had been made,
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so we went forward.
7:46
Appellant Attorney
I don't think there was,
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I mean, I don't think there was anything that they could do
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that wasn't entirely problematic because of the nature of the order.
7:54
Because I think what they would have had to do,
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and this didn't happen,
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but what they would have had to do is go to Dr. Dossier,
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and say, look, there's this order,
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the premise of which is that the attorney-client privilege
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has been vitiated going back to 2017.
8:06
We think that's fundamentally wrong.
8:09
I suppose you could try to make this issue go away
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by waiving your privilege at this point.
8:14
Judge Reyna
Well, but you preserve it.
8:15
You do that to preserve the privilege.
8:20
Appellant Attorney
Absolutely.
8:21
That's what we tried to do in the March 16th order.
8:24
Judge Prost
But you seem to argue in your brief,
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and this is one part where I find it a little difficult to accept,
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that you just didn't have time.
8:31
Your argument seems to be like, you know,
8:32
he's overseas in Saudi Arabia or wherever he is,
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and you didn't have enough time.
8:37
Well, as it turned out,
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you had a lot of time between things that happened.
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So even if you couldn't reach him in six hours,
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you also say, in fairness to you,
8:46
that you wanted him to have time to think about it.
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You didn't want him to make a snap decision.
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But enough time passed that why didn't you at least try to do that?
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That could have at least taken the issue off of the table.
8:57
Appellant Attorney
So here, I think the timeline,
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and this is important, here's the problem.
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So we're told to comply on the record the next day.
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So I don't think there's time to get everything,
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all the bells and orders by the next day.
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So we tell the court on March 16th that we are not going to comply.
9:14
Then by March 22nd,
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that's when we file the reconsideration motion,
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which is denied the exact same day.
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And then, you know, at that point,
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I want to see if I can get the exact date here,
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but by March 28th,
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we, Queen Emanuel withdraws from recommending Dossier.
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So there is a sum total of,
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I guess that's, you know, I hate to do math in public,
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but 13 days between the March 15th order
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and the time that Queen Emanuel withdraws from representing Dossier.
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So there's really no large increment of time
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where they could go to Dossier,
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but I do want to be as clear as I can.
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I don't think that really matters in the end
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because I don't think that's going to happen.
9:59
Because the effect of her order on March 15th
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is to say the privilege is already gone.
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It's not a matter of waiving it.
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It's already gone.
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And that's what we say we're not going to comply with.
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That's what we try to get reconsidered.
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And the point I was trying to make before
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is I think it's very helpful to contrast the process here
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with the process that was given
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when Norton moved for sanctions against Columbia
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for the unauthorized contact with Dossier.
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Because on that motion,
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you had a party actually going into court
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and saying we want sanctions against the other side.
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And then it was fully briefed
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and both sides had their competing ethics experts
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and we had the ability of the adversarial process
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to get to an answer.
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Frankly, I don't think the court got to the right answer,
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but that's neither here nor there.
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At least there was procedural due process.
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And one detail, but I think it's an important detail,
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is the ethics opinion that was offered by Columbia
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in that proceeding,
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their expert didn't have the best opinion.
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And I think that's the benefit of the engagement letter.
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And I think that expert not having the engagement letter
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very much colored the conclusions that that expert made.
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So I am anticipating that my friend's going to come up here
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and say, well, the due process violation
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wasn't as bad as it looks
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because there was some briefing on conflicts
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back in the context of the Norton motion.
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Now, first of all, I don't think that remotely gets it done.
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It doesn't allow you to do the sua sponte.
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But to me, it just illustrates
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that if you do this the right way,
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then you get the issues joined up.
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You don't have people trying to supplement
11:30
the record on appeal.
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You get the issues joined.
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You get competing experts
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who are actually dealing with the relevant provisions.
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In that context, that's what essentially got into the record,
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the engagement letter.
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Judge Dyk
Okay, well, there's clearly a due process problem here
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in the sense that she didn't have a hearing
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because it looks like criminal contempt.
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But that's not a solution
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because the result of our holding that
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would be to send it back
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for a hearing.
11:58
To determine whether there was a contempt.
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Your argument is there can't be a contempt
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because the order was invalid.
12:05
As I understand it,
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you're citing various cases like Eureka,
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which suggests that even if there's a conflict,
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the privilege continues to exist.
12:17
And the counter argument is,
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well, you had an obligation
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in order to comply with the order
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to ask the client to waive the privilege, correct?
12:27
Appellant Attorney
I mean,
12:28
I suppose the argument they would suggest
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is we had an obligation to do that,
12:33
but I don't think that's right.
12:34
I think that we would...
12:35
Well, that's the question.
12:36
Yeah.
12:36
I mean, but I still think at the end of the day,
12:40
under the Fourth Circuit law,
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it's clear that if the March 15th order
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is procedurally or substantively invalid,
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then on appeal...
12:48
Judge Dyk
Your argument is that the order didn't require
12:50
them to demand that we seek a wafer of the privilege.
12:54
Right.
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It required us to produce the documents.
12:56
Appellant Attorney
I think that's exactly right.
12:58
And that's why I think with that language I read before,
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I think Columbia had it right
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when they were seeking a motion to show cause
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when they said what the order did
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was it said the attorney-client privilege
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was gone retrospectively.
13:11
So it wasn't...
13:11
And the order is consistent with that, right?
13:13
The order doesn't say,
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go call up Dr. Dossier
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and see if they'll waive the privilege.
13:19
If that's what the order said,
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I mean, if I were there in real time,
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I would have said,
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that's not a valid order either,
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and I might try to file a motion for reconsideration.
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But at least that would have been an order to go...
13:28
Talk to Dr. Dossier
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and it would presume that the privilege still exists.
13:31
But that wasn't the order,
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as Your Honor points out.
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The order was,
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you disclose next day on the record in writing.
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And that's completely substantively wrong.
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I mean, in my view,
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that's wrong soup to nuts.
13:43
There's not a conflict that required
13:46
the ceasing the joint representation.
13:48
If there was a conflict,
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it would have been the kind of conflict that was waivable.
13:52
And even if there were an unwaivable conflict,
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it wouldn't have vitiated
13:56
the attorney-client privilege retroactively.
13:58
And that's the only way to understand your order.
14:00
Judge Reyna
I was surprised that there wasn't an attempt
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to get a waiver here,
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just for protective purposes.
14:07
Appellant Attorney
I mean, look,
14:08
with the benefit of hindsight,
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there might be things that you do differently.
14:11
But as I pointed out,
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the whole period between this order...
14:14
Judge Reyna
That's pretty common practice in litigation practice.
14:19
Appellant Attorney
I mean, that may be, Judge Raina,
14:21
but this is a pretty extraordinary order.
14:23
I mean, again,
14:24
and this isn't, as Judge Dyke pointed out,
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this isn't an order that says,
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go talk to your counsel,
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go talk to your client,
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and see if they'll waive the privilege.
14:30
I understand that,
14:30
Judge Reyna
and that's why I'm still a bit puzzled
14:33
as to why Quinn didn't jump on this
14:36
and say, my God,
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look, we've got to do everything possible
14:38
now to fight this,
14:41
instead of just letting it go.
14:44
Appellant Attorney
But to the contrary,
14:45
I think Quinn did everything it could to fight this.
14:48
Judge Reyna
I was asking you
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if you followed a motion for reconsideration
14:53
that same day.
14:54
Did you seek a waiver?
14:56
Did the client reassert its privilege?
14:59
Appellant Attorney
So, and as I tried to respond in any event,
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on the 16th, they filed the motion
15:04
that they weren't going to comply,
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and then six days later, on the 22nd,
15:09
so a week from the order, six days from that,
15:11
they filed a motion for reconsideration.
15:13
Okay.
15:14
Judge Dyk
If we were to hold, in the other case,
15:17
that the patent is invalid under 101,
15:19
does that move this case?
15:21
Appellant Attorney
I don't think so, Your Honor.
15:22
I think there's still that contempt sanction.
15:24
That contempt sanction still gives us,
15:27
you know, kind of independence,
15:29
independent of the, sort of, the exact sanction.
15:31
There's, you know, the precision case by Judge Friedman
15:34
says that they're still standing to appeal that.
15:36
So, you know, I think if this whole case had gone away,
15:41
and the district court had rejected the patent
15:43
on 101 grounds, but still held Quinn in contempt,
15:48
we would be able to appeal that,
15:49
and we should have the right to get that vacated or reversed,
15:52
and I think that's because of the reputational damage
15:55
of a finding like this.
15:56
Judge Reyna
If we were to send it back,
15:57
would it be with instructions,
15:59
and to provide you a hearing on the matter?
16:03
Appellant Attorney
I mean, I think that's the minimum that you could have,
16:06
but as I indicated before,
16:08
I actually think that the right result here
16:11
is to just reverse the finding of contempt
16:12
because it's based on an invalid order,
16:14
and I think, and then if the rest of the case goes away,
16:18
I think we're done.
16:19
Judge Prost
Yeah, the problem I have is the leap
16:21
between reversing the contempt order, I get that,
16:24
but based on the earlier order,
16:27
whether we have to reach,
16:28
anything in the earlier order,
16:30
if it's necessary for you,
16:31
if we just say we reverse it,
16:33
assuming hypothetically that we get rid of this on 101,
16:36
if we're enough to just get rid of the contempt order,
16:39
we'll stop.
16:40
Appellant Attorney
I mean, I think it would be...
16:42
Judge Prost
Because it's due process,
16:42
and we can get rid of it on any number of grounds.
16:44
Appellant Attorney
I agree, Your Honor,
16:46
and I guess all I would say is,
16:48
to me, I still think the most straightforward way
16:49
to decide this is to just go back to the March 15th order,
16:52
say the March 15th order didn't provide due process,
16:55
it's invalid,
16:56
and you can't have contempt on an invalid order,
16:58
and the case is over,
16:59
so let's just all go home.
17:01
Judge Dyk
Okay.
17:02
Thank you, Your Honor.
17:03
We have two minutes for a minute.
17:04
Mr. Woolen.
17:11
Appellee Attorney
Judge Dyke, may it please the Court.
17:14
This appeal is much simpler than Quinn makes it seem.
17:18
Quinn was sanctioned for not complying with a court order.
17:21
In responding to the motion to show cause,
17:23
Quinn made one and only one argument,
17:25
that it had complied.
17:27
That was wrong.
17:28
The district court found it was wrong.
17:30
Quinn doesn't challenge that finding here,
17:33
and it would be reviewed for clear error.
17:35
That's enough to resolve this appeal.
17:37
Of course, Quinn now says that it couldn't comply
17:40
because of the attorney-client privilege.
17:42
But there was a lot of evidence in front of Judge Lauch
17:45
that Quinn was not representing dossier.
17:47
It was shielding an adverse witness from appearing at trial.
17:51
Chief Judge Lauch said that in the 20-plus years...
17:53
Judge Dyk
There are all these cases,
17:55
like Eureka and Teleglobe and FDIC,
17:58
that say the existence of a conflict
18:00
doesn't eliminate the privilege.
18:02
Do you agree with those cases or disagree?
18:04
Appellee Attorney
I agree with them.
18:06
It's black-letter law.
18:07
They're right about that.
18:08
The client continues to hold the privilege,
18:10
and a client who's being poorly represented by a lawyer
18:13
thereby doesn't lose the privilege.
18:15
Judge Lauch didn't say a word to disagree with that.
18:18
Mr. Clement, in his briefs and his arguments...
18:20
Judge Dyk
So the privilege exists until the client waives it, right?
18:23
Appellee Attorney
Yes, and it's very important, Judge Lauch,
18:26
to understand what exactly Chief Judge Lauch said here.
18:30
She didn't say,
18:31
Oh, I'm wiping out the privilege and all the rest.
18:34
Chief Judge Lauch said,
18:35
I have in front of me substantial evidence
18:37
that a firm is harming one client to help another.
18:41
The firm acknowledges that it has misrepresented something to its client.
18:45
It has told the client that I, the court,
18:47
found that the firm is representing the client.
18:49
And I specifically held that open in two separate orders, the court says.
18:53
Judge Dyk
But if the privilege isn't vitiated by the conflict,
18:58
how could the order be valid?
18:59
Appellee Attorney
And so that's what I'm getting to.
19:00
What the court says is,
19:02
Look, I have substantial evidence in front of me.
19:04
That you may no longer be representing your client.
19:08
I need, this is at page 872 of the appendix.
19:11
She says,
19:11
I determined once and for all,
19:13
I need to get to the bottom of this.
19:15
I need to look at these communications to determine
19:18
whether there's an attorney-client representation at all,
19:21
whether you have a client
19:22
that doesn't want to be represented by you anymore.
19:25
Because the...
19:25
Judge Dyk
The fact that they don't want to be represented anymore,
19:28
even if you assume that that's true,
19:30
doesn't vitiate the privilege for the past either, right?
19:32
Appellee Attorney
That's right.
19:33
And the court didn't say,
19:34
I'm vitiating the privilege.
19:35
The Virginia ethics rules say,
19:37
this is 1.6B1.
19:39
You can provide it without getting rid of the privilege
19:41
in response to a court order.
19:43
The court didn't,
19:44
Judge Lauk didn't say anything about
19:45
setting aside privilege or all the rest.
19:47
Judge Lauk said,
19:48
I have a lot of evidence in front of me.
19:50
Judge Dyk
How can the judge order the disclosure of privileged information
19:54
without a waiver from the client?
19:56
Appellee Attorney
Oh, well, look,
19:57
I think separate argument,
19:58
whether the judge can order it publicly disclosed.
20:00
I think if Quinn had attempted to comply
20:02
by coming in and saying,
20:03
we want to disclose it in camera,
20:06
and the court had said no,
20:07
I think it'd be a very different
20:09
and more difficult case for me, Judge Dyke.
20:11
But I think if this court had said in camera...
20:13
Judge Prost
So we're going to decide this case
20:15
on the fact that they didn't come in and say,
20:18
can you undo your order and let us do it on camera?
20:21
And that's the way this case should go down?
20:23
Appellee Attorney
I just think we need to be fair to the district court.
20:26
The district court addressed the process points
20:28
at three separate times in the record below.
20:31
And by my count,
20:32
at page 343,
20:33
what, 5-1,
20:35
pages 40, 466, and 470.
20:37
Judge Dyk
Did she ever suggest that the submission in camera
20:39
would satisfy the order?
20:41
Appellee Attorney
She did.
20:41
In footnote 16 of the order that's under review,
20:44
on page 91 of the appendix.
20:47
91?
20:47
That's right.
20:48
The district court strongly suggested
20:50
that if they had asked for in-camera review,
20:53
they would have gotten it.
20:57
Judge Dyk
It's not quite the same thing as saying
20:59
that that was under the order.
21:01
No, no.
21:02
Appellee Attorney
Look, I...
21:04
Judge, like, if Quinn had ever,
21:06
during the course of these proceedings here,
21:08
attempted to comply,
21:10
we'd have a different case.
21:12
But to Judge Raina's questions,
21:13
Quinn never consulted his client
21:15
and never attempted to comply.
21:18
And what Judge Lauch said was,
21:20
look, I had them...
21:21
Judge Dyk
So your theory is,
21:22
given this order,
21:23
they had to go to the client
21:25
and ask the client to waive the privilege?
21:28
Appellee Attorney
I think that, at the minimum,
21:29
they had to discuss it with their client.
21:31
It turns out we now know...
21:32
Judge Prost
But she gave them, like, 12 hours?
21:34
Appellee Attorney
Oh, I agree.
21:35
And if ultimately they had been deemed
21:38
and held in contempt
21:39
for a timeliness problem, Judge Lauch,
21:41
just not being able to get it in in 24 hours,
21:43
I agree they'd have a much better argument.
21:46
But this has nothing to do with timeliness.
21:47
Like, the contempt here
21:50
didn't turn on timeliness.
21:52
The contempt has entered a year and a half,
21:54
excuse me, in September.
21:55
Judge Dyk
Do you agree that the...
21:56
Let's just consider the order in isolation.
21:59
An order to produce this material
22:02
was invalid
22:03
because the client was...
22:04
It was an attorney-client privilege, correct?
22:07
No.
22:07
No.
22:08
And why wasn't there an attorney-client privilege?
22:10
Appellee Attorney
Because the court always has the authority
22:12
to look into misconduct before it
22:14
involving lawyers and clients.
22:16
And the court could say,
22:17
you purport to have a client
22:19
who's over in Saudi Arabia.
22:21
That client for years has said he wanted to testify
22:23
and has now made statements harmful to your client.
22:26
You are coming in and saying to me, the judge,
22:29
that he somehow changed his mind.
22:31
And you've put in this one-sentence
22:32
unexplained declaration from him.
22:35
Meanwhile, you are acknowledging
22:36
that you have misrepresented to him
22:39
that I made a finding that you represent him
22:41
that I didn't make.
22:42
Judge Dyk
Look, Quinn is not, in this case,
22:44
covering itself with glory in the way it's behaved.
22:47
Okay?
22:47
But that's a different question
22:49
than whether the order is valid or invalid.
22:53
I'm trying to understand
22:54
how there could be a valid order
22:56
when the existence of a conflict
23:00
doesn't vitiate the privilege.
23:02
Appellee Attorney
Because the very question before the court, Judge Dyck,
23:04
is, is there an attorney-client relationship?
23:07
Quinn is saying there is,
23:08
and the judge is saying,
23:09
I have a lot of evidence in front of me
23:11
Judge Reyna
that that may not be true.
23:12
At that point, shouldn't the court order to,
23:14
in order to show cause?
23:16
Well, so what the court says...
23:18
I mean, these are significant rights
23:20
Appellee Attorney
that we're speaking about.
23:21
I agree, Judge Rayner.
23:22
And that's why I think you've got to understand
23:24
the procedural history,
23:25
and I don't think Quinn is fair to it.
23:27
The judge says, look, I had a motion for sanctions.
23:30
Then I had two motions in lemonade.
23:32
Then I had your reconsideration motion.
23:34
Then I had a round,
23:36
multiple rounds of briefing and hearings
23:38
on the missing witness instruction.
23:39
And then I had a full round of briefing
23:41
on the motion to show cause.
23:43
The judge says at multiple points,
23:45
I have had more than a half dozen rounds
23:48
of briefing on this.
23:49
I've had more than a half dozen hearings.
23:50
I've given you every opportunity
23:52
to make every argument that you want.
23:54
You have not attempted to comply.
23:56
You haven't offered any explanation
23:57
for your misrepresentation to your client.
23:59
I still don't know why the client isn't here
24:02
or whether you've talked to the client.
24:04
And even after all of that,
24:05
does not enter any criminal sanction, Judge Wright.
24:08
Does not enter a fine.
24:09
Doesn't refer any lawyer for disbarment.
24:11
Says only, you have deprived Columbia
24:14
of some evidence of litigation misconduct
24:16
that is relevant to the enhanced fees
24:18
and damages questions.
24:20
And so it says a negative inference.
24:22
Judge Prost
But if we rewind the clock,
24:24
we're back at March 15th, I guess.
24:27
It's a motion in lemonade
24:28
before the district court judge.
24:30
And suddenly there's a,
24:31
is it a footnote or something
24:32
that requires,
24:34
issues a disclosure order,
24:36
sua sponte,
24:37
not raised by either party,
24:39
not briefed,
24:41
full stop.
24:42
I mean, we're talking about the disclosure order,
24:45
the first instance of this,
24:47
how this began.
24:48
There might have been,
24:50
I think this is what Judge Raina is getting to.
24:52
Wasn't there an obligation?
24:53
Didn't the parties have the,
24:55
shouldn't the parties have had the ability
24:57
to present argument on that question?
25:00
Appellee Attorney
So they did present briefing and argument
25:03
on the question
25:04
in multiple different,
25:05
different stages of the case.
25:06
Before or after?
25:07
Judge Probst.
25:08
Judge Prost
Are you talking about after she issued the order?
25:10
But I want to step back.
25:11
That's not, is that good enough?
25:13
I want to step back in time.
25:14
I want to be fair to the district court judge too.
25:15
I want to be.
25:16
I mean, she had a lot on her plate.
25:17
And, but, really, after?
25:20
Appellee Attorney
I want to be very fair to her, right?
25:22
If the court thinks that something went wrong here,
25:24
it ought to send it back.
25:26
This district judge said this was conduct
25:28
that she had never seen
25:29
in her 20 plus years on the bench.
25:31
I think we ought to give her the opportunity to address it.
25:33
I know exactly what to do,
25:34
over would look like.
25:35
I don't know why the other side thinks it was tough.
25:37
Mr. Clement and I will brief
25:39
whether there was anything wrong with this
25:40
and whether quench should be held in contempt.
25:41
But to step back in time, Judge Probst,
25:43
let's be fair to the district court.
25:45
The district court says,
25:47
I decided your motion for sanctions in order.
25:49
And I left open the question
25:50
of whether you were representing Dossier
25:52
because there was a real question in my mind about that.
25:54
Then you came in with your motions in limine
25:57
and told me take out everything at trial
25:59
about the fact that Dossier is not going to be here.
26:02
But wait a minute.
26:03
Dossier said he wanted
26:04
to be here and now you're coming in
26:06
and telling me he changed his mind.
26:08
Judge Dyk
You're getting into things
26:11
which don't have to do with the validity of this order,
26:14
which might be a ground for sanctioning quench.
26:16
But the order said the privilege is gone
26:22
because of the conflict.
26:24
That you've admitted that that holding is incorrect.
26:28
The order rests on an incorrect premise.
26:32
And you're now arguing
26:34
well it could have rested on the idea
26:36
that the attorney-client relationship was terminated.
26:38
But she didn't find that.
26:40
And I don't see how that could be found without a hearing.
26:44
How is it that we can sustain this order
26:47
when on its face it seems to be invalid?
26:50
Appellee Attorney
Judge Dike, in fairness,
26:51
we need to separate the procedural problem
26:53
that Judge Probst was raising
26:55
from the substantive problem you're raising.
26:56
My procedural response to Judge Probst was the judge said
27:00
at that point you've admitted
27:02
that you have misrepresented something to your client.
27:04
And I want to get to the bottom of this.
27:06
To your substantive point,
27:08
the court didn't say I'm finding that the privilege is out the window.
27:12
The court said, and this is at page 72 of the appendix,
27:15
the court says in light of your misrepresentation of your client,
27:20
which you acknowledge and do not dispute,
27:22
I found it necessary to determine once and for all
27:26
whether you actually represent a dossier
27:28
or could represent a dossier in the future in front of me.
27:31
And the only way the court had to do that,
27:33
because the dossier was overruled, was to say, I don't know.
27:34
It was over in Saudi Arabia,
27:35
and Quinn was purporting to speak to him or speak for him,
27:39
was to say, show me the communications
27:41
because I want to see if you've been misleading a client.
27:43
Judge Dyk
She didn't decide the issue of whether they represented a dossier.
27:47
Appellee Attorney
That's exactly my point.
27:48
She said, I have a lot of evidence.
27:51
How can you raise an order on something
27:53
which you haven't decided?
27:55
Well, that's not what she decided, Judge Dike.
27:59
There's two separate questions, conflict and privilege,
28:02
and we need to not conflate those two.
28:05
Under Virginia law, once your client's interests materially diverge,
28:09
you can no longer represent both clients.
28:11
Both sides agree on that.
28:12
We and Quinn agree that's the test under Virginia law.
28:15
That's a fact question about whether your client's interests have diverged.
28:19
That goes to conflict.
28:20
And the court says, there's now a lot of evidence in front of me
28:24
that your interests have diverged
28:27
and that you may no longer be representing dossier.
28:30
I need to get to the bottom of that.
28:32
The court didn't say, I'm waiving privilege, I'm setting up a dossier.
28:35
I'm setting aside any of those things.
28:36
At that point, the privilege arguments weren't even really teed up for the court.
28:41
The court was saying, I need to determine the threshold question
28:44
of whether there's an attorney-client relationship at all,
28:47
and you are preventing me from doing that, Quinn,
28:50
by not handing over these communications.
28:52
Now, we now know it's not because they're trying to protect
28:55
the attorney-client privilege.
28:57
On the public record?
28:58
I'm sorry?
28:58
On the public record?
29:00
Well, yes, in two ways, right?
29:04
Set aside the most recent dossier declaration
29:06
and whether you consider that at all.
29:08
Judge Dyk
So you're going to order them produced on the public record
29:10
without making a determination of a lack of attorney-client privilege?
29:15
Appellee Attorney
So, Judge, I agree with you that the public disclosure
29:20
is the one part of the order that I do think is potentially problematic.
29:24
And if Quinn had come in and said, look, we want to comply.
29:28
We've discussed this with our client.
29:30
We want to comply.
29:31
We'll give them to you in camera.
29:33
And the judge had denied that.
29:34
I think that might well have been an abuse of discretion.
29:37
But that's not the way this played out.
29:39
Because Quinn has never wanted to comply.
29:41
Quinn doesn't want to turn over these emails for the obvious reason that
29:45
Judge Dyk
I don't see what authority you have for the idea that somebody held in contempt
29:49
for invalid reasons has an obligation to say,
29:53
you should modify your order so it's valid so that I'm in contempt.
29:57
Appellee Attorney
Well, two things, Judge Dyke.
29:58
One, we're reimagining the contempt order.
30:00
The district judge here was very clear, three times in a row,
30:04
in the order, at page 59, page 89, footnote 15, and page 94 to say,
30:10
Quinn has abandoned his privilege argument.
30:12
Because in light of the Latham-Dossier emails,
30:15
Dossier has already put in emails what his conversations were with Quinn.
30:19
And he's given them to Latham.
30:21
And Latham has given them to court.
30:23
So Quinn below, and this is at page 43-948, says,
30:27
any confidentiality concerns have been waived, their word, not mine.
30:31
And the only reason they give that they shouldn't be held in contempt,
30:34
is they've substantially complied.
30:36
And Judge Lauch, in her order three separate times, says,
30:39
I understand Quinn's no longer challenging my underlying order,
30:42
because the privilege is off the table,
30:45
because Dossier is attempting to get these things to me,
30:47
and Latham has disclosed the emails.
30:49
The only thing Quinn here is saying, the judge understood,
30:52
is that they complied, and the judge said that's wrong.
30:55
Now on appeal, Quinn has entirely reimagined this whole proceeding.
31:00
It's become about the underlying order, which is not what was in front of the judge.
31:03
And even with respect to the underlying order, Judge Dyke,
31:07
they have re-characterized it as something it wasn't.
31:09
You're right that the privilege belongs to the client,
31:13
but the only way for the court to determine whether that privilege could be evoked,
31:19
and whether it applied, whether there was a relationship at all
31:22
between the attorney and Dr. Dossier, was to look at those communications.
31:26
But I will grant you that the one thing the court should have done that it didn't,
31:30
was to say, give them to me in camera,
31:32
and if that were what they were complaining about,
31:35
and if that were the basis for the contempt finding,
31:37
we'd have a totally different case,
31:39
and that's what the judge notes in footnote 16,
31:42
and says, look, it's not like they asked me for in camera,
31:44
I likely would have done this.
31:45
Judge Dyk
What case is it faced with invalid where you have to tell the judge to revise it?
31:51
Appellee Attorney
It's only invalid in a part they didn't challenge, Judge Dyke.
31:54
In other words, they're not concerned about the public disclosure of the thing.
31:58
They never spoke to their client, not for weeks, not for months,
32:02
not for years, their putative client.
32:04
And that's the most remarkable thing about this case.
32:07
Mr. Clement is standing here saying
32:09
Quinn could not turn over these communications
32:11
because it needed to protect an attorney-client privilege
32:14
from a client who is actively attempting to decline their representation,
32:18
who we now know had that representation thrust on him against his wishes,
32:23
and who has told the court that if given the opportunity,
32:26
he would disavow the privilege, but he was never consulted about it.
32:29
Judge Prost
Can I just move you on to the,
32:31
you probably don't want to answer this or can't answer this,
32:35
but what Judge Dyke asked Mr. Clement earlier,
32:37
which is assuming hypothetically this case, the Merritt's case,
32:42
goes down on 101 or even at a minimum on the enhancement of damages
32:46
and the argument being made by the other side
32:50
that you can't use this issue to enhance damages
32:54
with respect to the particular infringement case we have before us.
32:58
Does this issue go away?
33:00
I mean,
33:01
now the judge,
33:02
you can't control what the judge wants to do,
33:05
sua sponte, I guess,
33:06
but from your perspective,
33:08
does this issue go away?
33:09
So I would say two things, Judge Probst.
33:11
Appellee Attorney
No, I think in fairness to Mr. Clement,
33:13
there is a law firm that still had a contempt finding entered against it
33:17
that I think it has standing to challenge
33:19
because it faces some separate harm from that order.
33:23
Judge Prost
No, but I'm assuming,
33:24
I'm sorry,
33:25
I'm assuming that we vacate the contempt order.
33:28
Appellee Attorney
If you vacate the contempt order,
33:31
then,
33:32
well, I think it's,
33:33
are you,
33:33
I think the key is are you reversing or are you vacating?
33:36
If I were the district judge
33:37
and this court said we think there was a procedural problem here,
33:41
then I think it should be sent back.
33:43
If the court thinks that the district court had no power
33:47
to look into these communications,
33:49
even if maybe they procedurally didn't do it the right way,
33:52
then I suppose it would reverse.
33:54
I think that would be a pretty remarkable thing to say,
33:57
but the key point about the two appeals, Judge Probst,
34:00
is the district court was very careful about this
34:03
and said three separate times,
34:05
this is pages 120, 127, and 140 of the appendix,
34:09
that it was doing the enhanced damages
34:12
totally independent of the negative inference.
34:15
Judge Prost
I think that she said possibly.
34:17
I mean, she used the word possibly,
34:19
and the day she issued the two the same day
34:21
and in her order, contempt order,
34:23
didn't she link it to the negative inference
34:26
for purposes of enhancement?
34:29
Appellee Attorney
So, Judge Probst,
34:29
I think Chief Judge Lauk was quite careful about this,
34:32
and I want to actually just read what she said.
34:34
She said,
34:35
on balance and even without considering
34:38
the court's negative inference towards Norton
34:40
regarding the unproduced communications,
34:42
which are the subject of the court's separate order
34:44
and opinion on the motion that she'll cause,
34:46
the read factors as a whole show that Norton's conduct
34:49
in this case has been sufficiently egregious
34:51
toward enhanced damages.
34:52
Judge Prost
And she also said, but she also said,
34:55
quote, it was possible that this record might support
34:58
treble enhancement under read,
35:00
even absent consideration of the negative inference.
35:04
Appellee Attorney
Oh, okay, so three things.
35:06
First, she starts off in the language I read and said,
35:08
in general, the read factors support it
35:10
without the negative inference.
35:11
Then on the one factor of litigation misconduct
35:13
where it's relevant, she says at page 127,
35:16
I would find this factor weighs
35:17
even without the negative inference.
35:19
Then at page 140 in the passage you were reading,
35:22
she does the multiplier.
35:24
But I read that sentence differently.
35:26
What she says is,
35:28
look, I could have gone to 3x in this case.
35:32
I could have done it even without the contempt stuff.
35:35
I could have gone all the way to 3.3x.
35:36
But I'm not doing that.
35:38
Judge Prost
Oh, so you think the negative inference
35:39
was the difference between 2.6 and 3?
35:43
Appellee Attorney
We have to, in order to make sense of everything she says,
35:47
let's look at it in context.
35:48
She says at the beginning, set aside the negative inference.
35:51
I find the factors in general weigh in favor of enhancement.
35:54
Judge Prost
Okay, but she even, forget the negative inference.
35:56
Yeah.
35:56
All of the stuff in her opinion
35:58
relies on Dr. Darcier and the conduct, right?
36:01
Even absent the negative inference,
36:03
let's assume hypothetically that if it survives 101,
36:06
we still think that you couldn't have done
36:09
used actions and conduct related to a different patent
36:13
that wasn't the subject of the enhancement.
36:16
As a matter of law, you can't go there.
36:19
So that goes away.
36:20
That amount goes away.
36:22
Or it has to have a do-over to just rely on what went down
36:25
with respect to this case,
36:27
outside of any conduct dealing with Dr. Darcier, right?
36:30
Appellee Attorney
So I think the judge is clearly correct
36:32
that if there was a litigation misconduct
36:35
with respect to the other patents,
36:37
the court could still consider that
36:39
as part of the patent of litigation,
36:40
pattern of litigation misconduct
36:43
in determining whether to enhance damages.
36:44
But at page 140, all it says in the passage you read, Judge Prost,
36:48
is I find seven of eight factors, so that's 87%.
36:52
That's a 2.6x multiplier.
36:54
The court said I'm not doing a qualitative weighing,
36:57
not looking at the misconduct, I'm just doing pure math.
36:59
And on the litigation misconduct,
37:01
and this is the key point, Judge Prost,
37:03
when the court does dossier,
37:05
it's one of four categories on that one factor,
37:08
and even with respect to dossier,
37:10
the court does not focus on what Mr. Clement and I
37:13
are here talking about on contempt.
37:14
It only talks about the mishandling of dossier as a witness,
37:17
the fact that he doesn't show up at trial.
37:20
And everybody acknowledges that that happened.
37:22
Judge Prost
But the enhancement under the statute,
37:23
the enhancement,
37:24
just for the infringement,
37:25
it's of the infringement among.
37:27
The infringement,
37:28
the finding of infringement with respect
37:30
to particular claims and particular patents
37:32
is outside of Dr. D'Arcier
37:35
and what his testimony was
37:37
in anything doing with trial.
37:38
His was in connection with inventorship
37:40
and fraudulent concealment, right?
37:42
And the jury didn't find for you all on that issue.
37:45
Well, that's right,
37:45
Appellee Attorney
but because we didn't have D'Arcier's testimony, right?
37:49
If we had had D'Arcier there saying on this...
37:51
Judge Prost
Okay, but so you think she can award enhancement?
37:53
I mean, that's a pretty long road
37:57
to get to enhancement of the damages
38:00
that the jury found to connect them to that.
38:04
Appellee Attorney
No, I think it's your point to now Norton,
38:07
not Quinn in the first appeal,
38:09
which is you don't get to have your cake and eat it too.
38:11
If you want to say that the closeness of the case
38:13
is the entire action,
38:14
then when we get to litigation misconduct,
38:16
we have to look at the misconduct
38:18
that the lawyers committed throughout the entire case,
38:20
not with respect to only whichever claims
38:23
the jury found infringement on.
38:25
Judge Prost
Okay, I'm sorry.
38:26
I've led you down this road,
38:28
but this is probably an issue that should be explored more.
38:32
Appellee Attorney
But Judge Lauck addressed this.
38:33
I mean, Judge Lauck sort of said,
38:34
look, this was all a pattern of misconduct
38:37
by Norton's lawyers.
38:40
They relitigated issues.
38:42
They engaged in improper cross-examination
38:45
despite my repeated warnings.
38:47
And then as part of that pattern says,
38:50
not all the stuff we're focused on for contempt,
38:52
but says, and they had dossier,
38:55
and they could have produced him for trial,
38:57
but they didn't keep him posted on trial
38:59
and he didn't come.
39:00
And that's from the Latham dossier emails.
39:02
That's nothing to do with contempt.
39:03
Those are in front of the judge at the time,
39:06
well before the contempt filing.
39:08
Judge Prost
Okay, we don't want to get into that.
39:09
I've led you down this road.
39:10
Judge Reyna
I have just a couple of questions.
39:12
Would you say that the March 15th order
39:15
vitiated your attorney crime privilege?
39:19
Appellee Attorney
I think the March 15th order was designed to figure out
39:22
whether there was an attorney-client relationship
39:25
that could give rise to privilege.
39:27
I think the court had in front of it a law firm that was claiming...
39:31
Judge Reyna
Would you say that that order reads to question
39:33
the attorney-client privilege or to infer that it does not exist?
39:39
Appellee Attorney
I don't think the order...
39:41
I think, again, we have to separate out two separate questions.
39:44
Judge Reyna
That's what I'm trying to do.
39:45
And I'm trying to get your response focused on the March 15th order
39:51
with respect to the attorney-client privilege.
39:53
It seems to me that as a result of that order
39:57
that the privilege no longer existed,
39:59
or at least in the court's mind.
40:01
Appellee Attorney
Well, I don't...
40:02
I think the court thought there was a substantial question
40:04
about that, Judge Rina.
40:05
And this is the problem with the case.
40:07
And obviously...
40:08
Judge Reyna
Let's just go with that.
40:10
There's a significant question about that.
40:12
Why did the court not, at that point in time,
40:15
order... issue an order to show cause
40:18
or to require that the parties appear in limine?
40:21
Or...
40:21
There's other ways to protect confidentiality.
40:24
I mean, we're all familiar with redaction, right?
40:27
Appellee Attorney
No.
40:28
I think, Judge Rina,
40:29
you've got to put yourself in the district court's shoes.
40:32
Right?
40:33
The other side keeps wanting to run together conflict and privilege.
40:36
And what the district court said was,
40:38
you admitted that you misrepresented to your client.
40:41
You said I told you that you're representing me.
40:45
And I never said that.
40:46
And you've never explained to me why you made that misstatement.
40:49
So I've got some evidence in front of me
40:51
that you're misleading your client.
40:52
I have a lot of other evidence that your client wants to testify.
40:55
He said that multiple times.
40:57
And you're now telling me he's changed his mind,
40:58
but he's not here.
40:59
I have real questions about whether you are still
41:02
fairly representing this client
41:04
or you're disserving Dossier
41:06
in order to serve Norton.
41:08
And I need to get to the bottom of it.
41:10
And Dossier is over in Saudi Arabia.
41:12
So it's not like I can call him in for a hearing.
41:13
But what I can do
41:15
is I can look at the communications between you
41:18
and your putative client
41:19
to figure out whether you've been
41:21
communicating and whether this client
41:22
actually wants you to be representing him.
41:24
As it turns out,
41:26
the client didn't want to be represented,
41:28
signed the 2020 Declaration
41:29
only because they demanded it,
41:31
and later said in emails,
41:33
Quinn has been pretending to represent me
41:35
but shielding me from trial.
41:36
And that's clear to me now
41:37
because my testimony would, quote,
41:39
be harmful, end quote, to Norton.
41:41
Judge Prost
Is this in the record?
41:42
It is in the record.
41:43
Appellee Attorney
Those are the Latham-Dossier emails
41:44
that were in front of the District Court.
41:46
That's Dossier's language
41:48
on the eve of trial saying,
41:51
if I had known that the trial was coming up in six days,
41:53
I would have been there,
41:54
but no one told me.
41:56
I didn't even know.
41:57
I would be happy to testify.
41:59
I've always said that.
42:01
And the judge says,
42:02
wait a minute,
42:03
Quinn,
42:03
and to some extent Latham,
42:05
you just told me
42:06
that your client made a voluntary decision
42:09
not to testify at trial next week,
42:10
and now you're submitting emails
42:12
from the last 48 hours
42:13
where your putative client says
42:15
he would have been happy to testify
42:17
if he had any idea that there was a trial going on.
42:20
What is going on?
42:22
And so, Judge Reyna,
42:23
I don't think that the court
42:24
was vitiating the privilege
42:25
or setting it aside.
42:27
I get that if they'd asked for in-camera review,
42:29
I think that would have been the right thing to do,
42:31
but what the court was saying was,
42:33
look, I've had multiple rounds of briefing on this.
42:36
You've known it was an open question.
42:38
You've now misrepresented
42:39
that open question to your client.
42:41
We're going to get to the bottom of this.
42:42
Judge Reyna
But what would you say
42:43
did the trial court mean
42:46
for the sanctions to be punitive in nature?
42:48
Not at all.
42:49
I mean, that's the thing about reading this record.
42:51
Appellee Attorney
If you looked at what was in front of the district court...
42:54
It makes a difference, correct?
42:55
It does.
42:56
But the district court's very clear.
42:59
This is at pages 95 to 98
43:03
and 87 of the appendix.
43:04
Judge Lau says,
43:06
I haven't seen conduct like this
43:08
in my entire time on the bench.
43:09
But she doesn't fly off the handle.
43:11
She doesn't enter anything criminal.
43:13
She says, I'm only doing civil sanctions.
43:15
Civil sanctions require less procedure
43:17
than criminal sanctions.
43:18
And the only thing I'm going to do
43:20
is I'm going to try to make Columbia whole.
43:23
If Columbia had had Dossier testify at trial,
43:26
that would have been relevant to the 643 claim.
43:30
And they were not able to show
43:34
that they were not able to have him at trial.
43:36
And they weren't because of the misconduct
43:38
of Dossier's lawyers.
43:40
That misconduct is relevant to the post-trial motions.
43:43
And so the negative inference.
43:45
That's it.
43:46
Thank you, Mr. Long.
43:47
Mr. Kleinman,
43:48
we've got two minutes.
43:53
Appellant Attorney
Thank you, Your Honors.
43:54
Just a few points in rebuttal.
43:56
First of all, there was no waiver
43:57
of the fundamental issues that we're raising here.
44:01
And again, the timeline on this is important.
44:04
But the reason that later in the contempt proceedings
44:07
we're not making this argument is twofold.
44:10
One, the judges already definitively rejected it.
44:12
But second, once we're off of the scene
44:15
in representing Dossier as of March 22nd,
44:18
at that point, Latham, who's now representing
44:20
only Norton and not Dossier,
44:24
has a reach-out to Dossier.
44:26
And then Dossier shares certain emails with Latham,
44:30
who's not representing Dossier.
44:32
So in that sense, there's like the good old-fashioned
44:35
waiver of the privilege by giving it to a party
44:38
who's not your lawyer.
44:40
And so at that point, again,
44:41
this is why it's very hard to unscramble the egg
44:43
at this point.
44:44
There's certainly no waiver.
44:45
It's just a different situation kind of later in the case.
44:48
Second of all, my friend makes a kind of move,
44:50
you know, sort of arduous effort to reconstruct this order.
44:55
I think, you know, with all due respect,
44:57
I think the best place to show Columbia's understanding
45:00
of the March 15th order is what they told the district court
45:03
in their motion for show cause for contempt.
45:07
And this is at Appendix Page 43922 and 23.
45:14
And I'm going to quote directly here.
45:15
On March 15th, 2022, the court found there was
45:20
no attorney-client privilege between Dr. Mark Dossier
45:24
and Norton's counsel during the period when counsel's
45:27
representation of Norton resulted in a conflict
45:30
with its purported representation of Dr. Dossier.
45:34
So they understand.
45:36
And it's the only way to understand the order
45:38
that directs Quinn to turn over these communications.
45:41
They understand that the order has vitiated the privilege.
45:45
It doesn't make any sense.
45:46
The idea that while the judge just had some suspicions,
45:50
that the attorney-client relationship had ended,
45:53
and so it was making an inquiry to get to the bottom of that,
45:56
then if that were the order, it would be phrased differently
45:59
and it would plainly require everything to be submitted in camera.
46:03
The reason that the judge didn't require this stuff
46:06
to be submitted in camera is because she had vitiated the privilege.
46:10
So just two last points in closing.
46:13
One is I find it kind of staggering that Columbia gets through
46:16
its entire briefs before this court without ever acknowledging
46:19
that there was an engagement letter here.
46:21
And I do think in thinking about all these issues
46:24
and all the equities, you should look at that.
46:26
It's in Appendix 16-566 and 67.
46:29
And this idea that there wasn't an attorney-client privilege
46:32
is really hard to swear with a retention letter
46:35
that clearly extends for the entire litigation,
46:38
not just the deposition, and says it can only be terminated in writing.
46:41
Last point, and I made this, but I think it's worth just underscoring
46:44
the invalidity of this order for procedural reasons
46:47
as well as substantive reasons.
46:49
The contrast between the handling of Norton's actual motions for sanctions
46:54
where both parties bring in ethics experts
46:56
and these motions eliminate, it's night and day.
47:00
This is not how you issue an order that vitiates the privilege.
47:03
It was a clear procedural error and a substantive one as well.
47:07
Thank you.
47:07
Okay.
47:08
Judge Dyk
Thank both counsel.
47:09
The case is submitted.