Sanctions decision against Paul Weiss, Alex Oh rests on unsettled ground

5 minute read

Signage is seen outside of the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP in Washington, D.C., U.S., August 30, 2020. REUTERS/Andrew Kelly

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(Reuters) - The distinction between a motion and a brief filed in support of that motion spelled doom on Wednesday for Paul, Weiss, Rifkind, Wharton & Garrison and its former partner Alex Oh.

U.S. District Judge Royce Lamberth of Washington, D.C., imposed Rule 11 sanctions on the firm and Oh, who left Paul Weiss in April to become the director of enforcement at the U.S. Securities and Exchange Commission and then abruptly resigned less than two weeks into the SEC job. The judge formally admonished Oh and Paul Weiss for filing a brief that mischaracterized the conduct of Oh’s opposing counsel during a contentious deposition in a long-running human rights case against Exxon Mobil.

To reach that conclusion, Lamberth first had to make an apparently unprecedented determination that Rule 11 applied to Paul Weiss’ brief, which the firm filed in connection with a cross-motion for discovery sanctions against plaintiffs lawyers at Cohen Milstein Sellers & Toll.

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Rule 11 of the Federal Rules of Civil Procedure allows judges to sanction lawyers for improper filings with the court. But it contains an exemption for “disclosures and discovery requests, responses, objections and motions” related to the civil rules for discovery, which have their own sanctions provisions. (The rationale for the exemption is to avoid potentially contradictory outcomes under Rule 11 and discovery rules that already allow judges to sanction lawyers for improper conduct in depositions and in document exchanges.)

Lamberth, as I’ll explain, decided that the Rule 11 exemption for discovery-related motions does not extend to briefs filed in support of those motions.

That determination, Lamberth acknowledged in Wednesday’s ruling, is at odds with opinions from at least four other federal district judges who have held that briefs and other filings are encompassed in the Rule 11 exemption for discovery-related materials. The judge didn’t cite any other decisions that track his reasoning.

I don’t know if Paul Weiss or Oh will appeal Lamberth’s Rule 11 decision. I emailed Oh’s lawyer, Geoffrey Klineberg of Kellogg, Hansen, Todd, Figel & Frederick, to request comment from him or Oh. He didn’t respond to my email. Nor did Paul Weiss partner Theodore Wells or a Paul Weiss spokeswoman. But if there’s an appeal, Lamberth’s holding on the application of Rule 11 to briefs stemming from discovery disputes seems like a good place to start.

I should also mention that the judge was totally unswayed by arguments that Oh and Paul Weiss should not be subject to Rule 11 sanctions because they genuinely believed their representations about Cohen Milstein partner Kit Pierson.

I told you on Monday about a declaration from Oh and a brief from Paul Weiss that laid out the circumstances of the remote deposition, in which Pierson protested the Exxon witness’ reliance on notes that turned out to have been prepared by Paul Weiss. Oh said in her declaration that the videotape of the deposition did not capture the Cohen Milstein lawyer’s facial expressions or body language, which she perceived to show anger and irritation.

Lamberth said there is no basis in case law for Paul Weiss’ purported Rule 11 exception for unwarranted representations made in good faith. Paul Weiss, he said, should have reviewed the videotape of the deposition before filing a brief that contained “unsupported and abnormally rancorous” accusations about opposing counsel.

Even Lamberth, however, said Paul Weiss’ more technical argument – that the Rule 11 exemption for discovery-related motions encompassed its brief calling for cross-sanctions – was a tough call. The exemption itself does not mention briefs, but Paul Weiss argued that a “plain language” reading of the provision indicates that the exemption extends to briefing arising from discovery disputes. The firm cited five decisions for the proposition that the sanctions regime in the federal rules governing discovery in civil cases precludes Rule 11 sanctions.

Cohen Milstein’s response brief argued that it’s not clear whether Paul Weiss’ cross-motion for sanctions was actually a “discovery motion” under the civil rules. The Paul Weiss filing, Cohen Milstein said, was rooted more firmly in the U.S. Code’s prohibition against vexatious filings than in the discovery provisions of the Federal Rules of Civil Procedure. Alternatively, Cohen Milstein said, the discovery rules do not specifically set “certification standards for factual contentions in discovery motions.” It would “create a lacuna,” Cohen Milstein said, to hold that Rule 11 does not apply to filings that the discovery rules do not address.

Lamberth focused tightly on the text of the Rule 11 exemption, which does not mention briefs in the list of discovery-related filings that fall outside the purview of the sanctions rule. The rules’ drafters certainly knew the difference between briefs and other kinds of filings, the judge said. So under various canons of construction, he said, the omission was deliberate: Even though the Rule 11 exemption covers discovery-related motions, it does not extend to briefs in support of those motions.

Besides, the judge said, the rules of civil procedure for discovery do not govern briefs. Rule 11, the judge said, is intended to deter baseless filings. It serves the purpose of Rule 11, Lamberth concluded, to hold lawyers accountable under the rule for briefs filed in connection with discovery disputes.

“The relevant statements appeared in a brief, not a motion. That distinction matters,” the judge wrote.

Interestingly, in acknowledging that he had split with other courts on the scope of the Rule 11 exemption, Lamberth cited different decisions than Paul Weiss mentioned in its brief, suggesting that the judge was deeply engaged in the case law.

Will his novel interpretation hold up? We’ll only find out if Oh or Paul Weiss challenges it. Otherwise, be careful what you say in briefs stemming from discovery disputes.

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.