[00:00:03] Speaker 00:
Good morning, Your Honor.

[00:00:04] Speaker 00:
Stephen Katz on behalf of the appellants, Williams and Conkren.

[00:00:08] Speaker 00:
Your Honors, I don't want to belabor the briefing, which is extensive, but I would like to propose a thought experiment to the panel that I think crystallizes precisely why the district court erred in grander summer judgment.

[00:00:20] Speaker 00:
Imagine that instead of reviewing a grant of summary judgment in favor of Mr. Rosette de Novo, you are instead reviewing a jury verdict in favor of Williams and Cochran for substantial evidence on the same evidentiary record.

[00:00:39] Speaker 00:
I would suggest to you that in this counterfactual review, it would be a fairly easy case.

[00:00:45] Speaker 00:
There is substantial evidence that would support a jury verdict in favor of Williams and Cochran on their Lanham Act claim.

[00:00:52] Speaker 03:
How is that?

[00:00:54] Speaker 03:
I'm curious, because what's your best evidence that Rosetta, allegedly the false advertising caused?

[00:01:02] Speaker 03:
that's part of Lexmark, caused injury to Williams and Cochran.

[00:01:07] Speaker 00:
The best evidence is expert testimony concerning the way the legal market works in Indian countries.

[00:01:14] Speaker 00:
Specifically, Mr. Foreman and Mr. Miranda, one an Indian law expert of long-standing reputation, the other a tribal

[00:01:26] Speaker 00:
executive both testifying that statements in the Mr. Rosette's promotional materials concerning his participation in the payuma litigation.

[00:01:39] Speaker 02:
One statement on the website?

[00:01:43] Speaker 02:
Or there more?

[00:01:44] Speaker 00:
Well, I think this one statement would be sufficient

[00:01:47] Speaker 02:
You said statements.

[00:01:49] Speaker 00:
Oh, I'm sorry.

[00:01:50] Speaker 00:
There are multiple representations in the one statement.

[00:01:55] Speaker 00:
That is, there are representations that Mr. Rosette participated in the payuma litigation, which I think we can all agree on the record is true, but there are statements about his participation had a particular effect in the litigation.

[00:02:07] Speaker 00:
He successfully litigated the case.

[00:02:10] Speaker 00:
And there is substantial evidence that that representation is false.

[00:02:15] Speaker 00:
There is also substantial evidence.

[00:02:17] Speaker 00:
Substantial evidence, not conclusive evidence.

[00:02:19] Speaker 02:
No, okay, and I just want to be clear on something.

[00:02:21] Speaker 02:
I hope I'm not missing something.

[00:02:23] Speaker 02:
That's the only statement, correct?

[00:02:25] Speaker 00:
That is the primary statement in the record.

[00:02:29] Speaker 02:
Well, it is or it is not.

[00:02:30] Speaker 02:
If there are others, could you tell me where in the record are those other statements?

[00:02:35] Speaker 00:
No, that is the statement that this case is focused on.

[00:02:39] Speaker 02:
OK, thank you.

[00:02:40] Speaker 00:
And that is the statement that would provide substantial evidence for a jury to find in favor of Williamson Cochran.

[00:02:47] Speaker 00:
Because the representations concerning the Rosette firm, Mr. Rosette's contribution to that litigation

[00:02:56] Speaker 00:
could be credited by the jury as false.

[00:02:59] Speaker 00:
And if false raises a presumption of materiality and reliance, which presumption would not mean necessary because there is substantial evidence in the record that would permit a reasonable juror to believe that those statements would be viewed by tribal officials before retaining a firm, particularly replacing the firm they had already hired.

[00:03:23] Speaker 00:
and that they would be material to their decision.

[00:03:26] Speaker 03:
But what's your best authority for that?

[00:03:28] Speaker 03:
Because you seem to suggest that the false advertising raises a presumption of deception.

[00:03:34] Speaker 03:
Is that what you're arguing?

[00:03:36] Speaker 00:
Yes.

[00:03:37] Speaker 00:
That would come from the Southland sod case.

[00:03:40] Speaker 03:
But that case involved a false comparative claims.

[00:03:45] Speaker 03:
Yes.

[00:03:45] Speaker 03:
That's not the case here.

[00:03:47] Speaker 03:
Why isn't that case distinguished?

[00:03:49] Speaker 00:
I would have to suggest, Your Honor, that is not correct for the following reason.

[00:03:53] Speaker 00:
Clearly, this is not the paradigmatic classic comparative advertising case.

[00:03:59] Speaker 00:
Buy my widgets.

[00:04:01] Speaker 00:
Don't buy her widgets.

[00:04:02] Speaker 00:
My widgets are better.

[00:04:04] Speaker 00:
That would be the classic comparative.

[00:04:06] Speaker 00:
That is not this case, conceitedly.

[00:04:09] Speaker 00:
However, we are talking about an acutely specialized legal market.

[00:04:15] Speaker 00:
This isn't a fairly routine contract dispute or slip and fall case or anything like that.

[00:04:20] Speaker 00:
This is a very specialized market with a very limited number of players who have the expertise within the market.

[00:04:28] Speaker 00:
And because of the limited nature of the market, a reasonable juror could view a false

[00:04:35] Speaker 00:
claim of credit in a particular piece of litigation.

[00:04:39] Speaker 02:
If we give credit to that argument, I mean, and I'm just sort of thinking of smaller communities where there are attorneys, let's say that they specialize in criminal law, and let's say that there's only, oh, I don't know, two attorneys that speak Spanish in that community.

[00:04:57] Speaker 02:
And so if that attorney goes out and puts in their website, oh, Spanish-speaking attorney, I specialize in criminal,

[00:05:04] Speaker 02:
and I've gotten all of these people off.

[00:05:07] Speaker 02:
So under your analysis, then that somehow would allow others to sue that individual attorney for taking their clients.

[00:05:17] Speaker 00:
If those statements were false.

[00:05:21] Speaker 00:
Big difference if those statements were false.

[00:05:23] Speaker 00:
Competition among lawyers without false statements, legitimate competition, of course, is not actionable.

[00:05:29] Speaker 00:
In the trivial sense, anyone could sue, because as we all know, anyone can file a lawsuit, and that's what litigation is about.

[00:05:34] Speaker 00:
It could be weeded out.

[00:05:35] Speaker 00:
But it wouldn't be a legitimate claim without falsity.

[00:05:38] Speaker 00:
And here there is substantial evidence of falsity.

[00:05:42] Speaker 00:
Not evidence that would conclude some, that would require summary judgment in favor of Williamson Cogman.

[00:05:47] Speaker 00:
I'm not claiming that.

[00:05:48] Speaker 00:
But there's enough for a reasonable jury to say that was false.

[00:05:53] Speaker 00:
But even without the presumption, there's still substantial evidence.

[00:05:57] Speaker 03:
But even if this presumption of deception applies like you're arguing, that only gives rise to a rebuttal.

[00:06:05] Speaker 03:
presumption, correct?

[00:06:06] Speaker 03:
Of course.

[00:06:07] Speaker 03:
All right.

[00:06:08] Speaker 03:
So hasn't Rosette overcome that presumption?

[00:06:12] Speaker 00:
No.

[00:06:13] Speaker 03:
Why not?

[00:06:14] Speaker 00:
Not in this context.

[00:06:15] Speaker 00:
That is exactly why I proposed the thought experiment.

[00:06:20] Speaker 00:
Let's play this out.

[00:06:22] Speaker 00:
The juror says, yes, tribal executives testified.

[00:06:27] Speaker 00:
They never saw the statement.

[00:06:28] Speaker 00:
Mr. Rosette is here and testified.

[00:06:29] Speaker 00:
I never told anyone.

[00:06:32] Speaker 00:
We don't find that testimony credible.

[00:06:34] Speaker 00:
We have testimony in front of us from experts in the area who say a tribe would necessarily look for that information.

[00:06:43] Speaker 02:
Someone would look at the website.

[00:06:44] Speaker 02:
The district court heard that evidence, correct?

[00:06:47] Speaker 00:
The court did, but this is a summary judgment appeal, Your Honor, not my counterfactual.

[00:06:54] Speaker 00:
This is not a jury verdict being reviewed for substantial evidence.

[00:06:57] Speaker 00:
See, this is my point.

[00:06:59] Speaker 00:
If there's enough evidence on this record that you would sustain the jury verdict for substantial evidence, because the jurors said,

[00:07:07] Speaker 00:
I don't credit that testimony.

[00:07:10] Speaker 00:
I credit this testimony more.

[00:07:13] Speaker 00:
If that's enough on this record, then how can summary judgment be granted in the other direction?

[00:07:18] Speaker 00:
You can't hold the two thoughts in your mind at the same time, which is why I propose the counterfactual.

[00:07:23] Speaker 00:
That's the problem here.

[00:07:24] Speaker 00:
Yes, this evidence was in front of the trial court, but it was hearing us.

[00:07:28] Speaker 00:
I'm sorry, Your Honor.

[00:07:29] Speaker 04:
Thank you.

[00:07:30] Speaker 04:
It's my understanding then that you're telling me it's not just about how

[00:07:35] Speaker 04:
the individual tribe that fired your client was deceived or not deceived, but also kind of the marketplace.

[00:07:43] Speaker 04:
Yes.

[00:07:43] Speaker 04:
Define the market for me.

[00:07:45] Speaker 04:
I don't think that was defined in the papers.

[00:07:49] Speaker 00:
OK.

[00:07:50] Speaker 00:
And I don't think I can define a market for you with the kind of precision you would expect in any trust case, but not in any trust case.

[00:07:55] Speaker 00:
But the market here would be Indian tribes, probably Indian tribes within California, Indian tribes who had gaming compacts with the state.

[00:08:05] Speaker 00:
And they would be looking at a very small, acutely specialized community of lawyers who not only... Was this evidence presented?

[00:08:16] Speaker 04:
You're telling me that it exists.

[00:08:19] Speaker 04:
I'm asking whether or not, when you were opposing summary judgment, this evidence was presented.

[00:08:25] Speaker 00:
Well, Your Honor, evidence in the census, here's how the market is defined.

[00:08:28] Speaker 00:
An expert says this is the market.

[00:08:30] Speaker 00:
I don't think you're going to find evidence phrased in that way.

[00:08:33] Speaker 00:
But I think it is clear, clearly implicit, very much on the face of Mr. Foreman's testimony and Mr. Miranda's testimony, that this is a specialized market.

[00:08:43] Speaker 00:
Tribes are looking for attorneys well-versed in Indian affairs and specifically well-versed in the ins and outs of the Indian Gaming Regulatory Act and the negotiation of compacts.

[00:08:55] Speaker 00:
Highly, highly, and in fact, there is some evidence in the record, I can't give you a citation, I'd be glad to provide a letter brief with, but there's some evidence in the record from which a jury could infer that there's a very tiny handful of players, maybe even as few as two or three, and that a very, very acutely defined case.

[00:09:11] Speaker 04:
If Ketchewan had not fired Williams and Cochran, would you be here today?

[00:09:15] Speaker 04:
Is there a case, a Lanham Act case, even though that sentence exists?

[00:09:21] Speaker 00:
I don't know.

[00:09:22] Speaker 00:
I don't know, because I don't know what Williams and Cochran would have been inclined to do about those representations, which are still out there and which are still false, irregardless of the firing.

[00:09:31] Speaker 03:
What do we do with the statements that the client here thought it was just too expensive to continue with the Rosette law firm?

[00:09:42] Speaker 00:
Well, those statements are in the record.

[00:09:45] Speaker 00:
But what you do with them is ask whether a reasonable juror

[00:09:51] Speaker 00:
would be compelled to conclude nothing but that those were the only reasons for the firing.

[00:09:58] Speaker 00:
And I don't think you can.

[00:09:59] Speaker 00:
And the fact in the record that allows a reasonable juror to discredit those to some degree, assuming they believe the representations at all, I'll leave that credibility determination aside.

[00:10:12] Speaker 00:
But just the amount of time.

[00:10:13] Speaker 00:
The record shows that these concerns existed for a fairly lengthy time.

[00:10:18] Speaker 00:
What was, if you will, the straw that broke the camel's back that caused Williams and Cochran to be fired exactly when they were fired, immediately following meetings with this or Rosette?

[00:10:29] Speaker 00:
And what transpired in those meetings?

[00:10:32] Speaker 00:
A reasonable juror

[00:10:34] Speaker 00:
could conclude that we simply do not believe fully the evidence presented by the tribe.

[00:10:40] Speaker 00:
We think it makes more common sense.

[00:10:43] Speaker 00:
The tribe looked at Mr. Rowe's website, saw his materials, that he talked about his experience with this kind of issue, and that that motivated them to make the change.

[00:10:52] Speaker 04:
Wasn't there, and correct me if I'm wrong, counsel, I believe there was deposition testimony that they did not see the sentence and nobody had looked it up, and Keshwan anyway, had not looked it up before firing Williams and Cochran.

[00:11:05] Speaker 03:
That is correct.

[00:11:06] Speaker 03:
So how would a reasonable jerk

[00:11:08] Speaker 03:
come to the conclusion that you say when their evidence is that no one ever saw the advertising?

[00:11:17] Speaker 00:
Because, Your Honor, I think the record is not that no one ever saw the advertising.

[00:11:21] Speaker 00:
The record is that particular individuals testified I didn't see the advertising.

[00:11:26] Speaker 00:
And I never learned about that.

[00:11:29] Speaker 00:
But first of all, a reasonable juror could say, I simply don't find that credible in light of the nature of the market, the importance of this litigation.

[00:11:40] Speaker 00:
The record shows that the tribe got to Williams and Cochran through publicity about the Paiuma case, albeit the publicity was more direct.

[00:11:50] Speaker 04:
Those statements, though, came out during deposition, correct?

[00:11:53] Speaker 00:
I'm sorry.

[00:11:54] Speaker 04:
The statements that, you know, I never saw the sentence, those came out during a deposition, correct?

[00:12:00] Speaker 04:
I believe that's correct.

[00:12:01] Speaker 04:
So there was no back and forth there where it's like, well, you know.

[00:12:05] Speaker 04:
I just, I can't believe that if I'm taking someone's deposition and they are saying something that is completely opposite of what my client needs or whatnot, that I wouldn't flesh that out some.

[00:12:16] Speaker 00:
Unfortunately, I'm not trying to be obstructionist.

[00:12:20] Speaker 00:
I can't address that because I didn't participate in the litigation below.

[00:12:24] Speaker 04:
I guess my point, though, is as a juror, I could believe that.

[00:12:28] Speaker 04:
I could say, well, maybe it is credible, because if he was in a deposition, they certainly would have asked him that.

[00:12:32] Speaker 00:
You certainly could conclude that as a juror.

[00:12:36] Speaker 00:
That would be reasonable.

[00:12:38] Speaker 00:
But you could also reasonably conclude, I don't believe it.

[00:12:42] Speaker 00:
There was too much at stake for this tribe to simply switch lawyers

[00:12:48] Speaker 00:
at this point in the proceedings without having done their due diligence, without believing that the new lawyer had something to offer us in terms of the outcome of the litigation, not just that they were cheaper in the short term.

[00:13:00] Speaker 02:
But, counsel, what you're arguing is that the absence of evidence suggests that, oh, yeah, a reasonable person would find that the other way.

[00:13:07] Speaker 00:
No, your honor.

[00:13:08] Speaker 00:
It's not the absence of evidence because the foundation for it is the testimony of Mr. Miranda and Mr. Foreman.

[00:13:15] Speaker 00:
about the way these things are handled by Indian tribes, about the way Indian tribes go about handling their business interests, particularly gaming business interests.

[00:13:25] Speaker 00:
That's the testimony that a reasonable juror could say, that makes more sense to me than the claims that these tribal leaders said, well, it was too expensive, and we like Mr. Rosette, and he bought us a great breakfast, so we're going to switch lawyers.

[00:13:39] Speaker 03:
Did you want to make a comment about the attorney client privilege ruling?

[00:13:45] Speaker 00:
Well, very briefly, the privilege issue.

[00:13:48] Speaker 00:
Your Honor, I think the clearest indication that Judge Curiel's evidentiary ruling is incorrect is Judge Curiel's own jurisprudence, because very recently, near the end of last year, in a case that I think has no principal distinction,

[00:14:08] Speaker 00:
He ruled that federal common law privilege would apply.

[00:14:10] Speaker 00:
That case, the Infantides case, I'm not pronouncing it correctly, I'm sure.

[00:14:17] Speaker 00:
But it's cited in your papers.

[00:14:19] Speaker 00:
In that case, he followed the contrary rule, the rule that we're advocating.

[00:14:24] Speaker 00:
That was an employment discrimination case with 11 causes of action, eight under the California government code, three under federal employment laws.

[00:14:33] Speaker 00:
And there he had no problem applying federal privilege law.

[00:14:37] Speaker 00:
His characterization in this case that somehow the center of gravity of the case was in state rather than federal law is belied by that very decision.

[00:14:47] Speaker 03:
I don't understand why it was error in applying the California law instead of the federal law.

[00:14:54] Speaker 03:
Why isn't that harmless?

[00:14:57] Speaker 00:
Because it's well-established and it was addressed in the papers.

[00:15:01] Speaker 00:
State law, privilege law, is more expansive than federal.

[00:15:04] Speaker 03:
Well, then looking at the privilege law, what kind of document do you think that Rosette withheld that could create a genuine issue of fact as to the proximate cause here?

[00:15:15] Speaker 03:
Because that's what we're looking at.

[00:15:18] Speaker 00:
I don't know, Your Honor.

[00:15:19] Speaker 00:
That is the very point.

[00:15:21] Speaker 00:
Thank you.

[00:15:22] Speaker 00:
Thank you, Your Honor.

[00:15:29] Speaker 00:
Sorry, a little slow.

[00:15:30] Speaker 00:
Thank you.

[00:15:30] Speaker 00:
It's all right.

[00:15:31] Speaker 03:
No problem.

[00:15:32] Speaker 03:
Take your time.

[00:15:39] Speaker 05:
Good morning, Your Honors.

[00:15:40] Speaker 05:
Brittany Rogers, may it please the court?

[00:15:43] Speaker 05:
I'd like to take Mr. Katz's thought experiment a little further here.

[00:15:47] Speaker 05:
Can you pull the microphones up?

[00:15:48] Speaker 05:
I'm having trouble.

[00:15:49] Speaker 05:
Yes, of course.

[00:15:50] Speaker 05:
Is that any better?

[00:15:52] Speaker 03:
Yes.

[00:15:52] Speaker 05:
I will project.

[00:15:55] Speaker 05:
If this case had gone to trial and Williams and Cochran's claim remained the same as it was as the court decided at summary judgment, the claim is a single sentence in Mr. Rosette's attorney biography deceived

[00:16:08] Speaker 05:
the Kwetsan tribe, into firing Williams and Cochran and hiring Rosette.

[00:16:15] Speaker 05:
And you have the president, the then president of the tribe, testifying unequivocally that he never saw, considered, or thought about the sentence.

[00:16:24] Speaker 05:
You have a council member of the tribe, the only other person present at the initial meeting saying, we didn't discuss the sentence, I didn't review marketing materials, it wasn't even our

[00:16:37] Speaker 05:
priority at the time to file litigation at the state.

[00:16:41] Speaker 05:
All we wanted was to negotiate a final compact by the end of the legislative session, which is what their declarations say.

[00:16:47] Speaker 05:
And Mr. Rosette was at breakfast telling me he could handle that negotiation and another state negotiation for one fifth of what Williams and Cochran was charging.

[00:17:01] Speaker 05:
To be clear, they were charging the Quezon tribe, a rural tribe whose traditional lands are along the lower Colorado River just north of the Mexican border, $50,000 a month flat fee to negotiate a gaining compact.

[00:17:19] Speaker 05:
This is not a extraordinarily complex litigation.

[00:17:25] Speaker 05:
And the work that they did during that time period was minimal from the records that were produced in Discovery.

[00:17:31] Speaker 05:
The tribe was already dissatisfied with their work, and they met with Mr. Rosette.

[00:17:36] Speaker 05:
They asked about his California experience, and he told them his experience was extensive.

[00:17:43] Speaker 05:
Williamson Cochran was also insisting that the tribe would need to pay them a $6 million contingency fee when the compact was complete.

[00:17:53] Speaker 05:
Whether or not any litigation was filed, this is just a gaming compact with one state.

[00:17:59] Speaker 05:
It defies logic that anyone would have any other conclusion than the tribe wanted to switch attorneys because it was dissatisfied.

[00:18:10] Speaker 05:
And as to the two experts that Mr. Katz pointed to, Mr. Miranda and Mr. Foreman, these are individuals within the Indian community, neither of whom was particularly fond of Mr. Rosette.

[00:18:25] Speaker 05:
Mr. Foreman is

[00:18:28] Speaker 05:
a tribal law attorney, Mr. Miranda is a gaming executive.

[00:18:32] Speaker 05:
Neither of them has ever been in a position to hire a tribe to negotiate a gaming compact, to oversee litigation concerning a gaming compact, or anything of that nature.

[00:18:44] Speaker 05:
As Mr. Katz acknowledged, this is not your traditional Lanham Act case.

[00:18:50] Speaker 05:
But if it were, let's think about we're two car dealerships, not two law firms.

[00:18:56] Speaker 05:
These experts would be the equivalent of bringing in another car dealer and someone who drives a car but never bought a car to say what is important to people in buying cars.

[00:19:07] Speaker 05:
Williams and Cochran had no evidence of how the actual market would react.

[00:19:13] Speaker 05:
They did no surveys, no studies.

[00:19:17] Speaker 05:
There is no evidence in the record.

[00:19:19] Speaker 05:
These are two individuals saying, yeah, I think that sentence in his biography

[00:19:25] Speaker 05:
nested in a 17-page brochure about the firm really would have been important to a tribe.

[00:19:33] Speaker 04:
Council, I apologize for interrupting, but I have a question.

[00:19:36] Speaker 04:
We all know the statement that is at issue here.

[00:19:38] Speaker 04:
Is it false?

[00:19:41] Speaker 05:
Your Honor, we would contend that it is not false, and I'm happy to explain it.

[00:19:45] Speaker 05:
Please.

[00:19:46] Speaker 05:
So it is uncontested that the statement was written and published in 2011.

[00:19:51] Speaker 05:
Mr. Rosette had

[00:19:55] Speaker 05:
planned this litigation, laid out the strategy, supervised the litigation.

[00:20:00] Speaker 05:
He had two associates, Ms.

[00:20:03] Speaker 05:
Williams and Mr. Cochran, neither of whom had ever represented a tribe in any capacity as a working attorney.

[00:20:11] Speaker 05:
And he filed a very important complaint that resulted in a very important preliminary injunction for Palma.

[00:20:17] Speaker 05:
That preliminary injunction allowed Palma to stop paying under its

[00:20:22] Speaker 05:
amend a compact or its compact and start paying under its 1999 compact.

[00:20:27] Speaker 05:
That ruling saved the tribe $100 million on a go-forward basis.

[00:20:33] Speaker 05:
That is just true.

[00:20:35] Speaker 05:
It is in fact how Williams and Cochran advertised it as well.

[00:20:40] Speaker 05:
Palma eventually replaced Rosette with Williams and Cochran when they left the Rosette firm.

[00:20:45] Speaker 05:
They took over the litigation.

[00:20:47] Speaker 05:
They litigated for a long time, and they secured a $36 million monetary judgment.

[00:20:53] Speaker 05:
The statement doesn't refer to that judgment.

[00:20:56] Speaker 05:
It couldn't have.

[00:20:56] Speaker 05:
It was published two years before the judgment was entered.

[00:21:01] Speaker 05:
And Mr. Rosette was proud of what he did there.

[00:21:05] Speaker 05:
By saying he successfully litigated case, he's not saying no one else was involved.

[00:21:10] Speaker 05:
He's not saying Mr. Cochran and Ms.

[00:21:12] Speaker 05:
Williams didn't contribute along the way as associates he was supervising.

[00:21:16] Speaker 05:
But that was his work, and he stood by it.

[00:21:20] Speaker 04:
Go ahead.

[00:21:21] Speaker 04:
One of the issues that Williams and Cochran has brought before this court is that the district court basically got it wrong for not making a determination as to false city.

[00:21:34] Speaker 04:
Instead, the district court said, hey, we didn't find causation here, so we don't need to go to false city.

[00:21:39] Speaker 04:
What's your position on that?

[00:21:43] Speaker 05:
Your Honor, it goes back to the fact that this is not a standard Lanham Act case.

[00:21:47] Speaker 05:
In a standard Lanham Act case, you're thinking about two competing businesses with competing products.

[00:21:53] Speaker 05:
In that world where it can be difficult for one competitor to prove this ad actually diverted businesses or sales, there are various presumptions in the case law that can be debated that those businesses can rely on in pleading and proving injury and causation.

[00:22:14] Speaker 05:
Our case is very different because Williams and Cochran is not saying broadly the market had this reaction.

[00:22:21] Speaker 05:
They're saying specifically, Quitson fired us because of this sentence.

[00:22:26] Speaker 05:
And, Your Honor, need look no further than the operative complaint, which is in the supplemental record at 758, paragraph 221.

[00:22:34] Speaker 05:
It specifically says they allege this sentence deceived Quitson's president.

[00:22:42] Speaker 05:
and, quote unquote, putative council member William White into firing Lawrence Cochran.

[00:22:52] Speaker 05:
That's the only alleged injury that they suffered.

[00:22:55] Speaker 05:
They didn't do discovery on anything else.

[00:22:57] Speaker 05:
They didn't submit expert testimony on anything else.

[00:23:00] Speaker 05:
None of their experts conducted any surveys or any analyses of how tribes view marketing.

[00:23:07] Speaker 05:
They could have potentially gone that way, and they didn't.

[00:23:11] Speaker 05:
And just to correct something that Mr. Katz mentioned earlier, this sentence was taken down from Mr. Rosette's biography after the court denied our motion to dismiss.

[00:23:23] Speaker 05:
And Mr. Rosette sadly predeceased the summary judgment order in this case.

[00:23:28] Speaker 05:
And so his biography is not relevant to their business going forward.

[00:23:33] Speaker 03:
Can I ask you about the application of the California law to the discovery dispute?

[00:23:41] Speaker 03:
I think you argue that that application was not clearly erroneous or contrary to law.

[00:23:48] Speaker 03:
Do we review that decision for clear error?

[00:23:52] Speaker 05:
The answer, Your Honor, is we believe so.

[00:23:58] Speaker 05:
The standard of review was not recited in Williams and Cochran's opening brief, but

[00:24:05] Speaker 05:
Our position is it doesn't actually matter whether the court looks at it de novo or for clear error.

[00:24:13] Speaker 05:
The magistrate judge was faced with two competing discovery disputes that he heard at the same time.

[00:24:20] Speaker 05:
Williams and Cochran was challenging both Rosette's privilege log and Quitton's privilege log.

[00:24:28] Speaker 05:
Rosette's privilege log, obviously, claimed privilege over communications with its client that satisfied the attorney-client privilege.

[00:24:37] Speaker 05:
And the court had to decide at the same time over both privilege logs which law would apply.

[00:24:44] Speaker 05:
Our position that, in fact, the reply brief does not dispute is that the result would not have been different under federal law.

[00:24:52] Speaker 03:
But do you acknowledge now that federal law

[00:24:57] Speaker 03:
would and should apply?

[00:24:59] Speaker 03:
I understand your argument that we review it de novo is harmless, but do you ... I guess, can you identify any examples where a federal court has applied straight privilege law to a claim arising under federal law?

[00:25:18] Speaker 05:
The parties briefed it under federal law.

[00:25:20] Speaker 05:
The magistrate judge raised the issue, Sue Esponte, and Williams and Cochran took the position on the record that federal law should apply.

[00:25:28] Speaker 05:
The challenge, I believe, is that most of the documents and all of the discovery related to

[00:25:37] Speaker 05:
Williams and Cochran's claims against the tribe.

[00:25:40] Speaker 05:
Those tribe, those claims all arose from state law.

[00:25:42] Speaker 05:
And in fact, their argument, their bleed argument was that the tribe waived its privilege by asserting state-based counterclaims and state affirmative defenses.

[00:25:56] Speaker 05:
When you look at the actual privilege log, the first document that Rosette withheld in time related to the Kwetsan relationship

[00:26:06] Speaker 05:
is dated after the initial meeting.

[00:26:09] Speaker 05:
The first internal document is June 19th, which is three days after Mr. Rosette was introduced to the tribe.

[00:26:15] Speaker 05:
And the first communication with the tribe that was withheld is dated June 22nd.

[00:26:20] Speaker 05:
There is no way that any of those communications would have any bearing on Williams and Cochran's Lanham Act claim.

[00:26:27] Speaker 05:
They related to Williams and Cochran's claims against the tribe.

[00:26:32] Speaker 05:
related to breach of contract, breach of fiduciary duty, the litany of other claims that were litigated in this case that involved the tribe, all of which arose under state law.

[00:26:50] Speaker 05:
So, Your Honor, we think that the record is clear here.

[00:26:57] Speaker 05:
We have the tribal president saying,

[00:26:59] Speaker 05:
We never considered this.

[00:27:00] Speaker 05:
We have the tribal council, a member of the tribal council saying, we didn't consider this.

[00:27:05] Speaker 05:
We were not interested in litigating against the state.

[00:27:08] Speaker 05:
And one of the points that I'd like to address from the briefing, and I know my time is running down, is this argument that we are somehow hiding behind the privilege and blocking discovery into this conversation, these early communications, which is objectively and verifiably false.

[00:27:27] Speaker 05:
Because of the dates of the documents we withheld, we didn't withhold documents leading up to this meeting or involving this meeting.

[00:27:32] Speaker 05:
And Williams and Cochran, actually, Your Honor, elected not to depose anyone in the case.

[00:27:39] Speaker 05:
They didn't depose Mr. Rosette and say, what did you say?

[00:27:42] Speaker 05:
What did you give them?

[00:27:43] Speaker 05:
What did you do?

[00:27:44] Speaker 05:
They didn't depose President Escalante and say, you know, tell us about your decision making.

[00:27:49] Speaker 05:
They didn't depose Council Member William White.

[00:27:52] Speaker 05:
They didn't depose any other tribal council member.

[00:27:56] Speaker 05:
to verify, corroborate, undermine that testimony.

[00:28:02] Speaker 05:
So to the extent that Williamson Cochran's argument now is there is not enough in the record for us to disprove the showing that Rosette made, that's a decision they made.

[00:28:13] Speaker 05:
That's a tactical decision they made.

[00:28:15] Speaker 05:
And there is nothing, respectfully, in the privilege law that would have changed that.

[00:28:24] Speaker 05:
If your honors have no further questions, I would be happy to submit.

[00:28:28] Speaker 05:
Thank you very much.

[00:28:33] Speaker 03:
Mr. Katz, you ran out of time, but I'll give you two minutes.

[00:28:38] Speaker 00:
OK.

[00:28:38] Speaker 00:
Well, then I'll make it two very quick points, and then I'll submit unless your honors have questions for me, in which case, of course, I'll be at your disposal.

[00:28:47] Speaker 00:
Taking the last point first, the notion that

[00:28:52] Speaker 00:
Depositions could have been taken.

[00:28:53] Speaker 00:
People could have been questioned.

[00:28:54] Speaker 00:
You could have followed up on their answers and tried to impeach them.

[00:28:58] Speaker 00:
as we all know from our litigation experience, is almost entirely a fool's errand until you have the underlying documents and you have material to impeach.

[00:29:06] Speaker 00:
Otherwise, unless you have an unbelievably poorly prepared witness, you're at the mercy of what the story of the witness is prepared to tell you.

[00:29:16] Speaker 00:
Documents first.

[00:29:17] Speaker 00:
And appellants were thwarted at that initial stage to get the underlying documents to see which direction they should go in order to elicit

[00:29:26] Speaker 00:
in order to to impeach and elicit the testimony.

[00:29:30] Speaker 00:
The other point very quickly and this goes to Judge Mendoza's question about the statement.

[00:29:35] Speaker 00:
The statement, the one sentence is what's critical here, but

[00:29:41] Speaker 00:
We can't literally take it as that sentence, starting with this word and ending with that word.

[00:29:46] Speaker 00:
So if somebody says, I didn't see that statement right there, they haven't seen that representation.

[00:29:52] Speaker 00:
Because that statement could be paraphrased.

[00:29:54] Speaker 00:
Mr. Rose, I could say, the payuma litigation, that was really me.

[00:29:57] Speaker 00:
I was the one who won that.

[00:29:59] Speaker 00:
Those associates were just doing my bidding.

[00:30:02] Speaker 00:
That, in effect, is the same representation and arguably into this record misrepresentation that the statement, quote,

[00:30:09] Speaker 00:
unquote is.

[00:30:11] Speaker 00:
And it's important in focusing on this statement to not be mesmerized by those exact words inside of quotation marks, but the ideas that are conveyed in that statement.

[00:30:22] Speaker 00:
And with that, I'm prepared to submit.

[00:30:24] Speaker 03:
Thank you very much.

[00:30:25] Speaker 03:
Mr. Katz and Ms.

[00:30:27] Speaker 03:
Rogers, I appreciate your oral argument presentations here today.

[00:30:30] Speaker 03:
The case of Williams and Cochran versus Sharon Rosette and the Ketchhoun tribe of the Fort Yuma Indian Reservation is now submitted.

[00:30:40] Speaker 03:
That is the last case on our docket for today, so we are adjourned.

[00:30:44] Speaker 04:
Thank you.