Thursday, August 9, 2012

Fox News commentator concedes representing Samsung prior to district bar admission

I was first to identify Susan Estrich, a law professor and TV celebrity, as the Samsung lawyer about whose lack of a notice of appearance and, more importantly, admission to the Northern District of California bar Judge Grewal respectfully asked questions.

Meanwhile, Ms. Estrich has confessed that the court records were correct and the mistake was on her part: she thought she had an admission to the relevant district from a while back, but didn't. But after the court's questions, she "immediately applied for and ha[s] been admitted to practice before the District Court of the Northern District of California, and [has] filed an appearance in this case". Now her first priorty is for "the Court not [to] hold these inadvertent omissions on [her] part against the merits of [her] client's case".

In her apologetic declaration, Ms. Estrich underlines that she always thought she was admitted to the district ever since she joined a California law firm (which has since dissolved) in 1986, though it now turns out that the only district to which she's been admitted is the Central District of California (which is mostly, in terms of population size and economics, the Greater L.A. Area). According to her declaration, her current law firm, Quinn Emanuel, "approached" her only on Saturday (August 4)"to argue this motion due to the press of trial obligations among other members of the team" and she immediately started preparing.

Ideally, she'd like the court to "determine this matter as concluded" since she's meanwhile made up for her oversights. While I'm sure that the court will take into consideration that Ms. Estrich was able to get her Northern District of California bar admission in no time, there are three reasons why the court may still want to sanction not only Ms. Estrich but also Samsung:

  1. Judge Koh had made the requirements perfectly clear on the first page of a case management order issued last month:

    "ALL TRIAL LAWYERS must make appearances in this case and must be admitted in this District."

    Note the capitalized word "ALL", and the lower-case word "must". Even if Ms. Estrich thinks she acted in good faith (I definitely believe that this is the truth), Samsung and its legal team had an obligation to ensure compliance with this rule.

  2. The "me too" motion that Ms. Estrich supported on Samsung's behalf is an attempt to later accuse the court of having applied double standards to the parties, though there are major factual differences between Samsung's automatic deletion of emails and Apple's related behavior. Samsung's motion will probably fail on its merits anyway. In that case, the court could up the ante for an appeal by also sanctioning Samsung and by sustaining Apple's well-reasoned objection that the motion was filed out of time. On appeal, Samsung would then have to prove that the sanction was unjust and that the motion was not untimely and that it should have been granted.

    The court would also be less likely to be perceived as unfair by the general public. The rule breach in this case is undisputed and much easier for the general public to understand than the differences between the fact patterns at issue in the two motions. And the court knows full well that Samsung's lawyers are playing a perception game her besides trying to get the best possible outcome.

  3. Samsung and its legal team are serial offenders as far as the rules governing this case are concerned. While the dedication of the Quinn Emanuel lawyers to Samsung's case is absolutely superb, total commitment to a client is not a substitute for compliance with the rules. There comes a point when the court will have to show that it takes its own rules seriously. This is a very high-profile case watched by a lot of people. If Judge Koh and Judge Grewal are exceedingly lenient in this one instead of making it clear that enough is enough, they -- and potentially the entire United States District Court for the Northern District of California -- will face even more rule breaches going forward, and others, who may act in less good faith than Ms. Estrich did, will expect to be treated equally leniently.

These are just reasons for which the court may sanction Samsung for this breach. I can't predict what it will do, though I believe that Samsung's motion for an adverse inference jury instruction against Apple will most likely fail, be it for this issue, for its timing, or for its merit, or for any combination of the foregoing reasons.

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