A Blog About Intellectual Property Litigation and the District of Delaware

Sometimes, it can be hard to take a hint.
Sometimes, it can be hard to take a hint. Edwin Hooper, Unsplash

Last month, we wrote about out-of-town co-counsel who the Court suggested may have mis-handled confidential information. The out-of-town counsel failed to appear for a hearing about the incident back in May.

Afterwards, opposing counsel requested sanctions including revocation of his pro hac admission, the out-of-town counsel withdrew his pro hac appearance. Since his withdrawal in May, the case has been re-assigned to Judge Williams, and Court had been quiet on this issue—suggesting perhaps he had successfully skirted any sanctions by mooting the relief.

Shortly after the withdrawal, the party got new Delaware counsel, and the previous Delaware counsel (who had to defend the failure to appear) withdrew.

Earlier this month, however, the out-of-town counsel filed a new pro hac motion. As opposing counsel pointed out, he filed the motion on a Saturday of a holiday weekend. By Monday—when the Court was still closed—the other parties in the case had filed a joint, 8-page opposition to his pro hac appearance.

The opposition re-hashes the history (some of which is set out in our previous post), and re-iterates the previous request for sanctions, and further seeks attorneys fees for their response to the pro hac motion.

The next day, Judge Williams gave counsel for the moving party one day to file a reply. In their reply, the new Delaware counsel for the out-of-town attorney denied the allegations relating to the previous request for sanctions, and asked for their own fees.

Further, in what you might call an "interesting tactical choice," the new Delaware counsel emphasized a previous declaration where the out-of-town counsel—who is now seeking admission—suggested he had lost confidence in the Court and its "judicial temperment":

Generally, the Proposed Intervenors’ trial counsel [the out-of-town attorney], a member of the California Bar, in good standing for a few months shy of 25 years, would have supreme confidence that binding precedent, judicial temperament, and the due process of law would stay the District Court’s hand from striking the heavy blow [opposing counsel] seeks. Upon review of the events as have transpired in this action thus far, however, suffice it to say that Proposed Intervenors trial counsel no longer maintains such supreme confidence.

CBV, Inc. v. ChanBond, LLC, C.A. No. 21-1456-GBW, D.I. 156 at 4 n.1 (D. Del. Oct. 12, 2022).

Today, Judge Williams scheduled a hearing for November 10, suggesting that he may not be inclined to side with the out-of-town counsel:

ORAL ORDER: It is HEREBY ORDERED that a hearing on the parties' pending motions (D.I. 90, 153, 158) is scheduled for November 10, 2022 at 10 AM in Courtroom 6B. [The out-of-town counsel] shall appear in person and be prepared to testify under oath regarding his actions and failure to comply with prior Court orders in this action or other matters which are relevant to evaluate his pro hac vice motion. ORDERED by Judge Gregory B. Williams on 10/21/22. (ntl) (Entered: 10/21/2022)

The hearing is on both the pro hac motion and the earlier motion for sanctions, which the Court had not ruled on, making clear that the motion is still live.

Something tells me things won't go well for him if he fails to appear for a second time.

Why Did They File the Pro Hac motion on a Saturday?

In opposing the pro hac motion, the other parties suggested that the out-of-town counsel filed on Saturday because he was "[h]oping he could take advantage of a judicial reassignment and an after-hours filing." D.I. 154 at 1.

I'm not so sure that's right. If his goal was to avoid opposition, he would have been much better off filing on a weekday. The Court usually turns around pro hac motions very quickly, and if he filed late in the day on a week day, the Court might grant the motion before the other side responded.

That said, pro hac motions are not something you'd typically file on a Saturday of a holiday weekend, so I'm not sure what the thought process was here.

If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.


Similar Posts