[00:00:00] Speaker 00:
And our final case for today is Harvest Aid versus Waxworks.

[00:00:33] Speaker 04:
Good morning, Your Honors.

[00:00:36] Speaker 04:
May it please the Court, A. Raymond Hamrick III for Appellants in this Harvest Aid litigation.

[00:00:45] Speaker 04:
This case on appeal presents a number of significant issues and anomalies that I think are of concern or should be of concern to this Court.

[00:00:56] Speaker 04:
It involves a copyright infringement case

[00:00:59] Speaker 04:
which involves some significant procedural issues as well as some substantive issues and evidentiary concerns that merit reversal.

[00:01:13] Speaker 04:
The first issue I want to talk about is the district court's error in refusing to consider a motion for new trial

[00:01:28] Speaker 04:
on the substitution of new council when prior council had withdrawn from the case under exigent circumstances alleging a reported conflict of interest.

[00:01:41] Speaker 04:
There were the court, the district court ultimately denied the request for a new trial not on the merits but on the procedural ground that there wasn't a proper meeting confer under Local Rule 7-3.

[00:01:55] Speaker 04:
And the ruling itself failed to consider the essence and circumstances that occurred, the good faith efforts to meet and confer, and denied the appellants a proper consideration by the district court of the potential

[00:02:23] Speaker 04:
errors in the underlying litigation.

[00:02:27] Speaker 04:
The facts of the record show that there was an attempt by counsel retained on a limited or special basis, Arthur Behrens, to meet and confer with plaintiff's counsel 12 days before the strict time frame under Rule 59 to bring a motion for a new trial.

[00:02:48] Speaker 04:
Then counsel for the appellants withdrew and made an ex-party application to withdraw, which was granted by the court.

[00:02:59] Speaker 04:
And new counsel, my firm, came in and we made an attempt to meet and confer within two days of our substitution into the case.

[00:03:09] Speaker 04:
We actually set a read-upon

[00:03:12] Speaker 04:
time to do that conference with plaintiff's counsel when he gave us his availability, which he failed to attend.

[00:03:23] Speaker 04:
So despite the efforts and good faith efforts and the exigent circumstances of that situation, the court refused to hear the motion for a new trial and instead denied it on procedural grounds.

[00:03:38] Speaker 04:
The circumstances here resulted in a miscarriage of justice because there are compelling issues in the underlying case that would have been important for resolution and consideration by the district court.

[00:03:54] Speaker 01:
The... So, counsel, would we have to conclude that the district court abused its discretion?

[00:04:04] Speaker 04:
My position, Your Honor, is that the district court did not exercise any discretion and that under the law is an abuse of discretion.

[00:04:13] Speaker 01:
The district court, I thought, referenced diligence.

[00:04:19] Speaker 01:
You're disagreeing with whether you were diligent, but I thought the district court at least referenced one factor to consider whether the parties had been diligent in complying with the local rule.

[00:04:29] Speaker 04:
I don't think that there's any

[00:04:33] Speaker 04:
discussion by the district court in making its decision under 7-3 of the exigent circumstances here.

[00:04:39] Speaker 04:
So they basically failed to consider the totality of the circumstances and instead favored strict procedural interpretation over substantial justice in this case.

[00:04:52] Speaker 04:
There was, I think this court has already commented in previous cases that procedure should be

[00:05:01] Speaker 04:
a handmaiden of justice, not the arbiter of justice.

[00:05:06] Speaker 04:
And this is one of those classic examples where despite the good faith efforts to meet and confer, despite the exigent circumstances, despite the scheduled meet and confer with plaintiff's counsel,

[00:05:20] Speaker 04:
None of those issues were considered.

[00:05:25] Speaker 02:
We don't know that they weren't considered.

[00:05:26] Speaker 02:
We know that they weren't explicitly discussed.

[00:05:32] Speaker 02:
We assume the district court knows the law, so shouldn't we assume that the district court did

[00:05:36] Speaker 02:
Did consider all of that?

[00:05:37] Speaker 04:
Well, the district court made an error in calculating the days of Mr. Barron's attempt to meet and confer and said it was six days before the time frame defiled the motion for a new trial.

[00:05:49] Speaker 04:
In fact, it was 12 days before.

[00:05:51] Speaker 04:
So I don't think that the evaluation

[00:05:54] Speaker 04:
was substantive and instead put procedure over the actual merits of a motion for a new trial, which was attempting to be brought in good faith by new counsel.

[00:06:10] Speaker 04:
So I think that that was air.

[00:06:14] Speaker 04:
I think that that's something that should be considered by this court in granting some relief, but the key

[00:06:21] Speaker 04:
Issue here on appeal is a number of other infirmities that took place at the trial level.

[00:06:27] Speaker 04:
For example, one of the signature issues is the fact that plaintiff offered a reported lay witness testimony by a third party to establish that these DVDs were in fact counterfeited.

[00:06:50] Speaker 04:
And this lay testimony or purported lay testimony was in truth and in fact, lay testimony disguised as expert testimony.

[00:07:03] Speaker 04:
And the individual, Mr. Schoner, used his technical expertise and knowledge to opine that these DVDs were in fact counterfeit.

[00:07:17] Speaker 04:
And there was no designation of an expert.

[00:07:20] Speaker 04:
There was no attempt to explain this anomaly other than the fact that his observations were purportedly lay observations but his technical expertise and knowledge of the industry were used in evaluating and determining, giving his opinion that they were in fact counterfeit DVDs.

[00:07:46] Speaker 04:
And the fact of the matter is the plaintiff's counsel subsequently confirmed and admitted essentially the expert nature of this testimony when he submitted a cause bill that requested reimbursement of about $2,000 for this expert testimony.

[00:08:06] Speaker 04:
That's a very problematic issue in this case because without the proper disclosure, this witness and his testimony should have been excluded.

[00:08:19] Speaker 04:
One of the other signature problems in this case is that there was,

[00:08:32] Speaker 04:
a complete anomaly in the testimony of Mr. Jackson.

[00:08:37] Speaker 04:
Mr. Jackson was the key witness in this case and he testified that these were blind pallets, 10 blind pallets that were purchased by him and that he got him on a date certain which is October 25th

[00:08:55] Speaker 04:
that it took him three or four days to unload those pallets and he had to inspect them, the DVDs on those pallets to determine what he in fact received.

[00:09:07] Speaker 04:
However, in his testimony, he was presented with an email where he advertised this I Believe DVD for sale, 5,000 units for sale on October 24th.

[00:09:25] Speaker 04:
One day before he clearly testified that he first received these pallets and clearly before he had any time to inspect them.

[00:09:37] Speaker 04:
Presented with this issue, the plaintiff's counsel came up with a novel interpretation and closing arguments.

[00:09:47] Speaker 04:
Among other things, he argued that Mr. Jackson was a credible witness and believable

[00:09:56] Speaker 04:
And then he came up with a story that he knows how to explain this anomaly essentially by saying that Mr. Jackson must have gone to the dock and inspected the DVDs on the 24th.

[00:10:10] Speaker 04:
There was no such evidence in the trial and there was no evidence whatsoever that he had the opportunity to even access the dock.

[00:10:21] Speaker 04:
It was a sheer story.

[00:10:24] Speaker 04:
by plaintiff's counsel, which prejudices the finding of the jury.

[00:10:29] Speaker 00:
Did the same district court judge handle this throughout the entire case?

[00:10:34] Speaker 04:
Yes, Your Honor.

[00:10:38] Speaker 00:
I'm just wondering about whether we need to get into the merits of the motion for new trial.

[00:10:49] Speaker 00:
What are you asking the court to do?

[00:10:53] Speaker 04:
We want this case to be remanded for a new trial based on the... So you are asking for relief on the merits of your new trial motion?

[00:11:02] Speaker 00:
Yes.

[00:11:04] Speaker 00:
Okay.

[00:11:05] Speaker 04:
We're asking that the court... Our request is that... I don't think we can do that.

[00:11:11] Speaker 00:
I mean, I would think that you would be asking us to vacate or reverse the district court's order

[00:11:20] Speaker 00:
and remanding for the district court to consider the new trial motion in the first instance.

[00:11:26] Speaker 04:
That would be the first instance, Your Honor, I agree.

[00:11:30] Speaker 01:
Okay.

[00:11:33] Speaker 01:
So I understood your argument to be illustrative.

[00:11:38] Speaker 01:
You wanted to show us that there was real prejudice and harm here because you had a viable motion for a new trial that had not been passed upon.

[00:11:46] Speaker 01:
Right.

[00:11:46] Speaker 01:
But not that you wanted us to resolve the motion for a new trial,

[00:11:50] Speaker 01:
It seems that it has to go back.

[00:11:52] Speaker 01:
If we agreed with you that the denial of the motion under the local rule was an abuse of discretion or erroneous, that we wouldn't then, for the first time, consider the motion for a new trial.

[00:12:07] Speaker 04:
No, I'm not asking this court to decide on the motion for a new trial at this time.

[00:12:10] Speaker 04:
We believe it should be remanded for a decision by the district court.

[00:12:14] Speaker 04:
But the other issue here is that there was, for purposes of,

[00:12:19] Speaker 04:
the record, I'm only asking that for the one defendant because there was no evidence whatsoever of any copyright infringement by Stephen Paul or SP Producing.

[00:12:33] Speaker 04:
And those two entities should be dismissed because there was a total lack of any evidence whatsoever to demonstrate they were involved in any copyright infringement.

[00:12:44] Speaker 01:
That was an argument that was subject to a motion you made before the district court, and then the district court didn't reach the merits of that argument because of rule 7.3, the local rule.

[00:12:54] Speaker 01:
Correct.

[00:12:55] Speaker 01:
So again, you were asking us to decide in the first instance whether those defendants should have been dismissed rather than remanding for the district court to consider it?

[00:13:02] Speaker 04:
Right, because there's a total lack of any evidence as to those defendants.

[00:13:06] Speaker 04:
It's a matter of the clear record.

[00:13:09] Speaker 04:
Now, the other issue here is that just for purposes of setting forth some of the key issues, we had a motion for attorney's fees that was filed 134 days after the applicable time limit by plaintiff's counsel in which ultimately the district court ruled that there was good cause or let's put it this way,

[00:13:38] Speaker 04:
The finding was there was excusable net neglect and failing to make that motion timely.

[00:13:45] Speaker 04:
And the purported excuse by plaintiff's counsel was that he was unaware of the local rule 7-3 that required him to meet and confer seven days before.

[00:13:58] Speaker 04:
And he made no application to extend the statutory time frame.

[00:14:03] Speaker 04:
The problem with that argument by plaintiff's counsel is that four months before he advocated in an opposition in the motion for mistrial that very rule which he claimed four months later he wasn't aware of.

[00:14:19] Speaker 04:
So I think the court should deny the motion or the granting of the motion for the attorney's fees and deny the award of attorney's fees as part of this ruling.

[00:14:34] Speaker 04:
The other thing that I want to raise is that the... Well, you know, it's interesting because we have so many signature issues here, but because of the expert designation failure, I think it is a matter of law that

[00:15:04] Speaker 04:
That could be reversed by and should be reversed by the court and that testimony just allowed because of the lack of expert designation.

[00:15:14] Speaker 04:
So as part of the, what I would suggest as part of the ruling here is to remand the case for consideration of the,

[00:15:23] Speaker 04:
merits of the request for a new trial, but also to advise the district court of the exclusion of the expert witness testimony that was undisclosed.

[00:15:37] Speaker 04:
Any questions at this time?

[00:15:40] Speaker 00:
Do you wish to reserve the remainder of your time?

[00:15:43] Speaker 04:
I do.

[00:15:44] Speaker 04:
I think I had five minutes I asked for.

[00:15:45] Speaker 00:
Thank you.

[00:15:59] Speaker 03:
Still morning for a couple more minutes.

[00:16:01] Speaker 03:
Good morning, Your Honors.

[00:16:02] Speaker 03:
Stephen Doniger for the cross appellant, appellee, harvest aid.

[00:16:12] Speaker 03:
I don't want to repeat what's in the brief.

[00:16:13] Speaker 03:
So if the Court has any specific questions about any of the matters raised, I think we try to address those as thoroughly and accurately as we could.

[00:16:22] Speaker 03:
And I'm certainly happy to address, you know, the merits of the case, although the courts indicated a lack of intent to get into it, which I think is probably warranted.

[00:16:32] Speaker 03:
The one thing I do want to say about my colleague's motion for a new trial and the court's application of Local Rule 7-3 is I just, again, this is in the briefing, but just to be clear, after trial,

[00:16:51] Speaker 03:
Defense counsel made a motion for a new trial with no meeting and conferring, none.

[00:16:56] Speaker 03:
And the court said, no, I'm not going to consider that.

[00:16:59] Speaker 03:
If you want to refile this motion, have a proper meeting, reach out to the other side, meet and confer, and then come back to me.

[00:17:09] Speaker 03:
The motion that they're here asking this panel to find the district court wrongly rejected for failure to meet and confer

[00:17:19] Speaker 03:
is a motion that no counsel of record for defense sought to confer over until literally the day before it needed to be filed.

[00:17:28] Speaker 00:
Oh, you're being technical and using the record, right?

[00:17:32] Speaker 03:
Well, I'm not being technical because if you look at the rules, the other attorneys who reached out had no authority to file that motion.

[00:17:39] Speaker 03:
They had no authority to negotiate anything.

[00:17:42] Speaker 00:
So that made your ignoring their request for a meet and confer excusable?

[00:17:50] Speaker 03:
I mean, it's not just excusable.

[00:17:52] Speaker 03:
If the court thinks that I'm wrong about this, I'm happy to hear why.

[00:17:56] Speaker 03:
But I think it actually would have been improper for me to engage in discussions with someone who's not counsel of record on the case.

[00:18:02] Speaker 03:
who's not even copying counsel record on the case, when there's counsel record on the case.

[00:18:08] Speaker 00:
Was there any explanation or communication that they were going to be substituting in or?

[00:18:14] Speaker 03:
No.

[00:18:15] Speaker 00:
In fact... Comment saying, I represent?

[00:18:17] Speaker 03:
No.

[00:18:17] Speaker 03:
In fact, if I recall correctly, they had specifically said they were not going to be becoming counsel record in the case.

[00:18:23] Speaker 03:
I'm like, I don't understand what this is.

[00:18:27] Speaker 03:
Did you tell them that?

[00:18:29] Speaker 03:
I'm not...

[00:18:31] Speaker 03:
I don't recall the exact back and forth.

[00:18:34] Speaker 03:
I may well not have.

[00:18:35] Speaker 03:
I'm not in the habit of engaging in discussions on cases with attorneys who are not counsel of record in those cases.

[00:18:45] Speaker 03:
But the bottom line is that even my colleague, well, I shouldn't say the bottom line.

[00:18:50] Speaker 03:
You'll tell us what the bottom line is.

[00:18:52] Speaker 03:
But even my colleague, when he substituted in on the third,

[00:18:57] Speaker 03:
And if we're being contacted by other attorneys who are on counsel record, I don't understand why my colleague could not have reached out before being formally retained, but he became counsel record on the third, didn't reach out until the seventh, the day before.

[00:19:13] Speaker 03:
I think what we did in this case, I immediately said, no problem.

[00:19:19] Speaker 03:
We'll meet and confer.

[00:19:21] Speaker 03:
But we weren't the only parties.

[00:19:22] Speaker 03:
And the issues for a new trial involved Waxworks as well.

[00:19:25] Speaker 03:
And they were counsel.

[00:19:27] Speaker 03:
And I think it was perfectly reasonable of us to say, I don't think that we should be conferring piecemeal over this, because the motion for a new trial is going to involve all parties.

[00:19:38] Speaker 03:
Waxworks said they weren't available on the 7th, literally the same day they asked to confer.

[00:19:43] Speaker 03:
I said, no problem.

[00:19:45] Speaker 03:
And then Waxworks said, we're not available until tomorrow the 8th.

[00:19:49] Speaker 03:
And I said, all right, I think we need to wait for Waxworks because this involves all parties.

[00:19:54] Speaker 03:
And at that point, there was nothing further from my colleagues.

[00:19:58] Speaker 03:
And they just proceeded to file their motion on the 8th without any further efforts to meet and confer.

[00:20:02] Speaker 03:
I don't think the record reflects gamesmanship on our part or lack of cooperation on our part.

[00:20:07] Speaker 03:
I don't think that's a fair read.

[00:20:09] Speaker 03:
And regardless, this whole story, and I don't mean that pejoratively, but this whole story about a conflict of interest and a real issue with the prior council, we have nothing but conclusory statements about that.

[00:20:24] Speaker 03:
And from our perspective, from where we were sitting at the time,

[00:20:28] Speaker 03:
And even today, I see no reason why counsel of record for the defendants, regardless of which one, could not have reached out to us sooner.

[00:20:41] Speaker 03:
And I think that given the trial courts' prior express, prior warning, the last time they filed a motion for a new trial, there was simply no excuse for this.

[00:20:54] Speaker 01:
So counsel that withdrew filed the original motion you're discussing.

[00:20:58] Speaker 01:
Correct.

[00:21:00] Speaker 01:
So they leave, the defendant retains new counsel or attempts to, as I understood, that counsel attempted to meet and confer, but then he did not end up becoming counsel of record.

[00:21:11] Speaker 01:
The motion to withdraw is granted, new counsel makes an appearance.

[00:21:15] Speaker 01:
Right.

[00:21:16] Speaker 01:
Wasn't there someone in the interim before between the trial counsel and the counsel they ultimately retained?

[00:21:22] Speaker 03:
That's what we were discussing a moment ago.

[00:21:23] Speaker 03:
It was an attorney that had never expressed any, basically told us that he was not counsel record.

[00:21:30] Speaker 03:
He wasn't going to become counsel record.

[00:21:32] Speaker 03:
He therefore, as I mentioned, had no authority to file a motion or negotiate anything in the case.

[00:21:38] Speaker 01:
So he was trying to...

[00:21:42] Speaker 01:
Help these this defendant and Start the process at least have a meet and confer.

[00:21:48] Speaker 01:
There's a very tight window and the deadline for the motion for new trials rigid They weren't going to be able to get it extended new counsel is Inters the case they reach out to try to do mean confer the schedule of time and then you don't appear I mean your reason is because another defendant wasn't available, but I

[00:22:10] Speaker 01:
It seems that you're arguing that they should be put in a position of almost futility and that what they did, we would have to conclude that they really weren't diligent and so the district court properly weighed the equities and denied their motion without considering the merits.

[00:22:38] Speaker 03:
So I think that is correct.

[00:22:39] Speaker 03:
I think that when you look at the entirety of the record in this case, in October, shortly before the motion for a new trial was due, we got this declaration that's very, very vague.

[00:22:54] Speaker 03:
Oh, there was a conflict that arose immediately after the trial.

[00:22:58] Speaker 03:
This is in June, and now we're talking in October.

[00:23:01] Speaker 03:
Immediately after trial, it became obvious to counsel, he couldn't continue to represent the defendants,

[00:23:07] Speaker 03:
He wasn't going to be able to take any further steps, that there was a conflict of interest.

[00:23:11] Speaker 03:
There's nothing as to why no one else substituted in.

[00:23:15] Speaker 03:
There's two points to make.

[00:23:16] Speaker 03:
First, there's nothing as to why no one else substituted in between June and October.

[00:23:22] Speaker 03:
Nothing about any efforts, nothing other than that they just sort of sat on their hands.

[00:23:27] Speaker 03:
The second issue is that between June and October, in fact, right after the trial, in fact,

[00:23:35] Speaker 03:
former counsel of record, the Leichter firm, filed a motion for a new trial, filed a subsequent declaration.

[00:23:45] Speaker 03:
The evidence that was before the trial court was actually inconsistent with this statement that prior counsel for defendants realized immediately after the trial that he couldn't take any other action and wasn't going to take any other action.

[00:24:00] Speaker 03:
It was entirely inconsistent with that.

[00:24:04] Speaker 03:
Given that, I think the court acted well within its discretion to say, you haven't justified why counsel of record in this case would wait until the day before a motion was filed to reach out.

[00:24:17] Speaker 03:
And I see that Mr. Doniger and Ms.

[00:24:19] Speaker 03:
Schultz, counsel for Harvest Aid, readily responded saying, sure.

[00:24:23] Speaker 03:
And then Waxworks said they weren't available that day.

[00:24:26] Speaker 03:
They said, great, let's set something for tomorrow then when they're available.

[00:24:33] Speaker 03:
You just file the motion without anything?

[00:24:36] Speaker 03:
Like that's not on anyone but the defendants.

[00:24:42] Speaker 01:
So they became counsel of record on October 3rd?

[00:24:45] Speaker 01:
Correct.

[00:24:46] Speaker 01:
The motion was due by October 8th?

[00:24:48] Speaker 01:
Correct.

[00:24:48] Speaker 01:
So they didn't even have seven days.

[00:24:50] Speaker 01:
They couldn't comply with the local rule.

[00:24:54] Speaker 03:
So defendants could.

[00:24:56] Speaker 03:
Defendants knew counsel could not.

[00:24:58] Speaker 03:
And that's the thing.

[00:24:59] Speaker 03:
It's not like defendants were without

[00:25:01] Speaker 03:
Competent counsel of record the entire time and I think that's the way you said there was counsel that you wouldn't speak to because they weren't counsel of record Right, but defendants counsel of record from trial in June remains counsel of record Through I say he didn't substitute off until exactly October.

[00:25:19] Speaker 03:
He didn't substitute He didn't substitute off.

[00:25:21] Speaker 03:
He didn't tell anyone that he wasn't able to do any work on the case He didn't tell anyone the like that that hey, there's new counsel.

[00:25:29] Speaker 03:
You should substitute you talk to

[00:25:31] Speaker 03:
None of that happened.

[00:25:36] Speaker 02:
From your perspective, he was still representing them when Barnes started to reach out.

[00:25:41] Speaker 03:
From the court's perspective and the record in this case, he was still representing them.

[00:25:45] Speaker 03:
The law is clear that counsel of record remains obligated to act on the case unless and until they're no longer counsel of record.

[00:25:55] Speaker 03:
It's not like the defendants were without counsel of record.

[00:26:01] Speaker 03:
And it's hard for me to believe, right?

[00:26:04] Speaker 03:
It's hard for me.

[00:26:05] Speaker 03:
Mr. Hamrick and I have worked together on other cases.

[00:26:08] Speaker 03:
Had he reached out to me seven days beforehand and said, hey, I'm in the process of getting retained.

[00:26:13] Speaker 03:
I'm not yet.

[00:26:14] Speaker 03:
We need to confer over this.

[00:26:15] Speaker 03:
Just like I did the day he reached out, I would have said no problem.

[00:26:22] Speaker 03:
Any failure to undertake diligent efforts to meet and confer is simply not on anyone but defendants.

[00:26:35] Speaker 03:
A lot of this case revolves around the application of Rule 7-3.

[00:26:41] Speaker 03:
And honestly, I think the most interesting part of this case is really about the application of Rule 7-3.

[00:26:48] Speaker 03:
In the briefing that we submitted to the court, we put forth a number of district court opinions that really are sort of all over the place, you know, on how 7-3.

[00:26:59] Speaker 00:
That's because it's a discretionary rule and it doesn't require

[00:27:05] Speaker 00:
that a motion be denied, it allows the court to consider a number of factors.

[00:27:17] Speaker 00:
And I guess my concern on this case is looking what happened.

[00:27:23] Speaker 00:
There's not an explicit analysis of what actually went on or what the reasons were for the

[00:27:36] Speaker 00:
failure to meet the deadline.

[00:27:38] Speaker 00:
It seems obvious to me that the reasons were trying to get new council and get representation and file the motion timely, consistent with the federal rules of civil procedure.

[00:27:57] Speaker 03:
So I think that's fair.

[00:27:59] Speaker 03:
I think it's fair to sort of look at that in the totality.

[00:28:03] Speaker 03:
And of course, you're completely correct.

[00:28:05] Speaker 03:
We come out of the gate in all of our briefing, and we say we fully understand.

[00:28:10] Speaker 03:
Both on their appeal and on our appeal, we fully understand the court has broad discretion in awarding attorneys fees.

[00:28:20] Speaker 03:
I'm sorry, in deciding when to strictly apply Rule 7-3.

[00:28:25] Speaker 03:
The question is, what are the relevant factors that the court should be

[00:28:29] Speaker 03:
Asserting and that's why I kind of said a moment ago that I think it's the most interesting question in this case because there's really little to no guidance From this court on what when courts should and shouldn't like how courts should apply those rules And I think that that was when we look at what other courts have said in doing so right to the extent they've weighed these factors one of them of course is a

[00:28:55] Speaker 03:
this overarching desire to make sure the merits of the case are addressed.

[00:29:01] Speaker 00:
Well, we've said that the federal rules of civil procedure should be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.

[00:29:15] Speaker 00:
And I don't think that the local rules inconsistent with that.

[00:29:20] Speaker 03:
No, it's not.

[00:29:20] Speaker 03:
And in this case, the case was tried on the merits.

[00:29:22] Speaker 03:
In this case, there's a full trial.

[00:29:24] Speaker 00:
But the merits of the new trial motion were not heard.

[00:29:28] Speaker 03:
So they weren't.

[00:29:29] Speaker 03:
And the decision as to whether and how to apply rule 7-3 was made by the same trial judge who saw all of the evidence, who knew that it was in the best position to evaluate whether or not there was actually anything here that would result in a miscarriage of justice if this motion were not addressed.

[00:29:53] Speaker 01:
So are you suggesting that the trial judge should employ local rule 7-3 in lieu of considering the merits?

[00:30:03] Speaker 01:
The district judge takes a pass and says, I don't think this has merit, so I'm just going to deny it because I didn't comply with the meet and confer.

[00:30:10] Speaker 03:
Well, I think it's a factor.

[00:30:11] Speaker 03:
I think a factor, as Judge Wardlaw had just indicated, is ensuring that the merits of the case are being properly addressed.

[00:30:19] Speaker 03:
And so if the court has seen all of the evidence throughout the trial, has seen that the results of the trial, because the court on its own can say, I don't think there's evidence to support that jury's verdict.

[00:30:33] Speaker 03:
And the court can do a bunch of things.

[00:30:34] Speaker 03:
But if the court sees all the evidence, sees the verdict, says, that seems right to me,

[00:30:39] Speaker 03:
You know, I think as Judge Thomas said, that something is not explicitly discussed does not mean that it wasn't explicitly considered.

[00:30:50] Speaker 03:
And I think these are the relevant factors.

[00:30:52] Speaker 03:
And when we look at our motion, right, where we were seeking attorney's fees and I think the circumstances explaining why there was not, you know, strict, strict compliance with the rule should be much more forgiving.

[00:31:09] Speaker 03:
But that's also a situation where our motion for attorney's fees was not, unlike the merits of the case that were properly addressed at trial, our motion for attorney's fees was not initially addressed on the merits.

[00:31:24] Speaker 03:
And when the court finally did get to it, it became clear that all of the factors on the merits actually supported an award of fees.

[00:31:33] Speaker 03:
So that's a situation where local rule 7-3

[00:31:38] Speaker 03:
you know, under Judge Wardlaw's, you know, totally, you know, appropriate, you know, putting the microscope on ensuring that the merits of cases are properly addressed, that's a case where 7-3 should not have categorically prevented consideration of the merits of a motion, much more so than

[00:31:58] Speaker 03:
A new trial motion where the evidence of the trial was fairly addressed by the jury.

[00:32:01] Speaker 01:
So was the new trial motion fully briefed?

[00:32:03] Speaker 01:
It was the motion.

[00:32:04] Speaker 01:
Did you even respond?

[00:32:06] Speaker 01:
We did.

[00:32:07] Speaker 01:
Was the reply, the whole thing was briefed?

[00:32:09] Speaker 01:
It was fully briefed.

[00:32:11] Speaker 01:
And then no argument, just the denial based on 7-3?

[00:32:14] Speaker 01:
That's correct.

[00:32:17] Speaker 03:
All right.

[00:32:17] Speaker 03:
So I see that I have three minutes and change left.

[00:32:21] Speaker 03:
Why don't I save that time, unless the court has any other questions?

[00:32:25] Speaker 00:
Do you have any further?

[00:32:27] Speaker 03:
No.

[00:32:29] Speaker 00:
I know.

[00:32:32] Speaker 00:
OK.

[00:32:35] Speaker 00:
No, I don't.

[00:32:36] Speaker 00:
OK.

[00:32:36] Speaker 00:
Thank you.

[00:32:44] Speaker 04:
A few points here that I wanted to make to the court.

[00:32:47] Speaker 04:
First of all,

[00:32:49] Speaker 04:
The fact that Arthur Behrens was not admitted as a council does not bar his attempts to meet and confer and the local rules, there is no requirement that the attorney actually be admitted and in fact, what he stated in an email to Mr. Doniger which is in the record of ER 1765, he said he's been retained by

[00:33:19] Speaker 04:
the defendants on a limited basis to file a motion for a new trial.

[00:33:24] Speaker 04:
So he specifically advised Mr. Doniger of that fact which Mr. Doniger did not even have the courtesy of replying to.

[00:33:33] Speaker 04:
Obviously, the signature issue here is whether there should be strict compliance with 7-3 when there's,

[00:33:48] Speaker 04:
admittedly, exigent circumstances going on with the conflicted council.

[00:33:53] Speaker 04:
We cited to the court in our briefs some of the factors that we were able to divine from other cases outside this jurisdiction, which dealt with similar local rules.

[00:34:05] Speaker 04:
And the three things that the courts have focused on is whether the party acted in bad faith.

[00:34:14] Speaker 04:
Well, this clearly was not an effort or attempt to act in bad faith because Barron's made an effort to meet and confer.

[00:34:23] Speaker 04:
We substituted and we didn't get the file for a couple of days in full.

[00:34:27] Speaker 04:
And then we made an effort to meet and confer which Mr. Doniger agreed specifically to participate in which he went silent and rogue on with us.

[00:34:38] Speaker 04:
And then the second thing that the courts focus on, on this local rule.

[00:34:43] Speaker 00:
You're referring to that when he agreed then he didn't show up?

[00:34:50] Speaker 04:
Yes, yes your honor.

[00:34:52] Speaker 04:
He agreed to, he gave us times when he would be available for a meet and confer.

[00:34:57] Speaker 04:
We had initiated the conference call and he never participated without telling us why.

[00:35:06] Speaker 04:
That was a problem.

[00:35:07] Speaker 04:
And then the second thing the courts focus on interpreting similar local rules is whether there was an effort to make a good faith, whether there was a good faith effort to comply with the meet and confer with opposing councils.

[00:35:23] Speaker 04:
Clearly, we have three factors here.

[00:35:26] Speaker 04:
Barron's tried.

[00:35:27] Speaker 04:
Council is conflicted.

[00:35:29] Speaker 04:
There's a good faith effort by my firm when we got involved and none of those were successful.

[00:35:34] Speaker 04:
Basically, we were blown off by plaintiff's counsel and he used that argument to frustrate our ability to bring a motion for a new trial.

[00:35:44] Speaker 04:
So we also just for the edification here, not only was the motion for a new trial fully brief, it was denied under 7-3 as the record reflects.

[00:35:56] Speaker 04:
We also filed a subsequent motion for reconsideration arguing that it should be considered on the merits for the various reasons we're articulating here this morning and that was denied.

[00:36:06] Speaker 04:
So we did everything we could, made every good faith effort to meet and confer in the strict

[00:36:12] Speaker 04:
interpretation and the imposition of rule 7.7-3 here precluded the merits or potential validity of our motion for a new trial to be decided by the district court.

[00:36:29] Speaker 04:
If there are any further questions, we'd submit on the record.

[00:36:33] Speaker 00:
I think we're fine.

[00:36:35] Speaker 00:
Thank you, Council.

[00:36:36] Speaker 00:
Thank you.

[00:36:36] Speaker 00:
Harvest Aid versus Wax Works will be submitted

[00:36:42] Speaker 03:
I believe I had a few moments left, and I would read on our appeal.

[00:36:47] Speaker 00:
Really want to do this?

[00:36:48] Speaker 03:
If the court is satisfied, I can.

[00:36:51] Speaker 00:
We've been sitting here a pretty long time today.

[00:36:55] Speaker 03:
May I, if I take less than 30 seconds?

[00:36:58] Speaker 00:
OK.

[00:37:00] Speaker 03:
I know, probably not a good idea to say that after you've said it.

[00:37:02] Speaker 03:
Well, I do want to note that 1 ER 20, the court specifically considered Mr. Barnes and noted that, and this is a quote from the court, district court,

[00:37:11] Speaker 03:
Any attempts by Mr. Barnes to meet and confer with plaintiff's counsel regarding the instant motion were rightfully rejected as he was never counsel of record for defendants.

[00:37:20] Speaker 03:
That was after we had submitted the relevant authorities.

[00:37:23] Speaker 00:
So again, you're just pressing on it.

[00:37:26] Speaker 00:
I don't buy if the email said I was retained by them for a limited purpose.

[00:37:31] Speaker 00:
I want to meet and confer.

[00:37:32] Speaker 00:
I don't know whether being counsel of record has any significance at all.

[00:37:39] Speaker 03:
Retention on a limited scope basis is simply not a thing in federal court.

[00:37:44] Speaker 03:
You can't appear solely for a motion.

[00:37:46] Speaker 00:
What he was saying is I'm going to appear to meet and confer and for the purposes of this motion.

[00:37:51] Speaker 00:
I don't know why you can't do that.

[00:37:52] Speaker 03:
An attorney, you're either attorney of record on a case or you're not.

[00:37:56] Speaker 00:
That's not true.

[00:37:57] Speaker 00:
That's simply not true.

[00:37:58] Speaker 00:
And I practice litigation as a litigation partner at a Melvany Meyers for, oh, god.

[00:38:05] Speaker 00:
16, well, I was in partner the whole time, but 16 years in the litigation practice of a Melvin A. Myers before I became a district court judge.

[00:38:14] Speaker 00:
And I can assure you, you can be retained on a limited basis for the purpose of doing this or the purpose of doing that.

[00:38:23] Speaker 03:
To my knowledge, that was not.

[00:38:24] Speaker 00:
So you really want to argue at the end of this thing that you had the right to just disregard

[00:38:33] Speaker 00:
The reaching out by was it mr. Burroughs Barnes Barnes Barnes.

[00:38:38] Speaker 00:
Yeah, I was unaware of limited Well, then I would like to just make sure that we haven't really addressed the attorney No, now you're at one minute and 37 seconds over.

[00:38:52] Speaker 00:
So this session of the court is adjourned for today.

[00:38:56] Speaker 00:
Thank you.

[00:38:56] Speaker 00:
I