[00:00:00] Speaker 04:
That leads us to number 24, 1244.

[00:00:04] Speaker 04:
Thrust fees of Columbia University versus general interest rate.

[00:00:11] Speaker 04:
Okay, Mr. Clung.

[00:00:12] Speaker 01:
Your honors may please the court.

[00:00:15] Speaker 01:
This appeal involves an extraordinary contempt sanction against Queen Emanuel for its failure to comply with a March 15, 2022 order to disclose a host of attorney-client communications on the record by the next day.

[00:00:30] Speaker 01:
Under Fourth Circuit law, which governs this issue, that contempt order cannot stand unless the March 15th order that underlies it can't stand if the order that underlies it is invalid.

[00:00:43] Speaker 01:
That order was invalid both substantively and procedurally.

[00:00:46] Speaker 01:
And the departures from due process and party presentation continued with the contempt sanction itself.

[00:00:53] Speaker 01:
One way or another, the contempt sanction must be reversed.

[00:00:58] Speaker 01:
Now first, on substance, there are multiple problems with the March 15th order, starting with its flawed premise that a conflict prevented Quinn from simultaneously representing Norton and its former employee, Dassier.

[00:01:12] Speaker 01:
There was no such conflict.

[00:01:14] Speaker 01:
To be sure, Dassier's deposition testimony was not unalloyedly helpful for Norton.

[00:01:20] Speaker 01:
That is often the case with employees with employer-funded joint representations.

[00:01:26] Speaker 01:
that the testimony is something of a mixed bag is utterly commonplace and not the kind of real conflict that precludes a joint or a common representation.

[00:01:36] Speaker 01:
Jointly represented employees show up on the opposing side's witness list with some regularity without triggering a disqualifying conduct.

[00:01:45] Speaker 01:
Here, no one, including Columbia and its lawyers, raised any suggestion of a conflict when Quinn-Emanuel represented dossier in a nearly seven-hour deposition back in August 2014.

[00:02:04] Speaker 00:
that you give us and I'm grateful for that kind of a Chinese menu or cheesecake factory about all the different things that are wrong so we could do less and we could do more.

[00:02:12] Speaker 00:
So this question is about how much we have to do, assuming we agree with at least some of your arguments.

[00:02:18] Speaker 00:
So on the due process front,

[00:02:20] Speaker 00:
if there's no process, and we have to go undo the contempt order.

[00:02:26] Speaker 00:
But the original order, the disclosure order, can that be left?

[00:02:30] Speaker 00:
Is that satisfactory to just go to the contempt order and say that's problematic?

[00:02:36] Speaker 01:
So we did give you something of a Chinese menu.

[00:02:39] Speaker 01:
I mean, you know, I'm here representing only Queen Emanuel.

[00:02:42] Speaker 01:
So from the perspective of my client,

[00:02:45] Speaker 01:
sort of anything that gets rid of the contempt sanctions is a pretty good day for us.

[00:02:48] Speaker 01:
So if you want to go right to that, I think that is sufficient, and I'm happy to address that.

[00:02:53] Speaker 01:
I do think it makes some sense, though, to start with.

[00:02:57] Speaker 00:
No, and I don't disagree with that.

[00:02:58] Speaker 00:
Yeah.

[00:02:58] Speaker 00:
Okay.

[00:02:58] Speaker 00:
So let's start where you started.

[00:03:00] Speaker 00:
Right.

[00:03:00] Speaker 00:
If we see there's a due process violation, why isn't the result, therefore, not to undo it or to reverse it or to decide here whether there was a conflict, but to send it back to the district court?

[00:03:13] Speaker 00:
for an opportunity for the parties to brief that issue before her and allow her to reach another decision, which would obviously be reviewable, God forbid, once again.

[00:03:22] Speaker 00:
Why isn't that the better course than reversing?

[00:03:26] Speaker 01:
So, I mean, God forbid, indeed.

[00:03:27] Speaker 01:
And I guess from my perspective, I'm not even sure you can quite sort of unring the bell at this point as to the March 15th order.

[00:03:36] Speaker 01:
Because the March 15th order, again, it is resolving

[00:03:40] Speaker 01:
motions in limine filed by Norton.

[00:03:44] Speaker 01:
And so I don't think there's any other word for it than gratuitously.

[00:03:48] Speaker 01:
It starts in footnote seven, and then it's picked up in the language of the order.

[00:03:53] Speaker 01:
She then orders this incredible disclosure of attorney-client privileged information.

[00:03:58] Speaker 01:
Now, I don't think there was any conflict before that order.

[00:04:02] Speaker 01:
But once that order's out there, that scrambles everything.

[00:04:06] Speaker 01:
Because at that point, Quinn Emanuel

[00:04:08] Speaker 01:
is in an impossible position.

[00:04:09] Speaker 01:
I think the only way to understand her order is that she has held that the attorney-client privilege is already gone.

[00:04:17] Speaker 01:
And there's a lot of back and forth about who waves it and all of that kind of stuff.

[00:04:21] Speaker 01:
But the gist of her March 15th order is that the engagement letter is void, that the attorney-client privilege has been vitiated retroactively to some unspecified time when the conflict arose.

[00:04:35] Speaker 01:
And so at that point, I mean, everything changes at that point.

[00:04:39] Speaker 01:
Fair enough.

[00:04:40] Speaker 00:
So if we unravel that order, but we do it on the basis that there was no opportunity to respond, you're not saying she wouldn't have had authority.

[00:04:48] Speaker 00:
You would disagree with her.

[00:04:49] Speaker 00:
But to raise the issue, at least, and give the parties an opportunity to respond.

[00:04:55] Speaker 00:
So we unring the bell, but we allow for a do-over.

[00:04:59] Speaker 01:
Again, I think it's hard for me to get my head around what a do-over looks like at this point when Dossier is now talking to Columbia's lawyers and Quinn Emanuel is out of the case effectively and Latham and Watkins is representing Norton.

[00:05:16] Speaker 01:
I just think it's hard to unring the bell here.

[00:05:19] Speaker 01:
But just to underscore, I think, the due process problem here.

[00:05:23] Speaker 03:
I think it is worth contrasting what happened with this extraordinary order on March 15th with what happened when Norton... Counselor, when the March 15th order was issued, did Quinn demand or request an immediate hearing?

[00:05:40] Speaker 01:
So what it did is on March 16th, so the next day, which is the date they were given to respond, they filed a two-page document that basically said we're not going to comply.

[00:05:51] Speaker 01:
It's a very brief document.

[00:05:52] Speaker 01:
They invoked attorney-client privilege as well, but they said we're not going to comply.

[00:05:55] Speaker 01:
Then, exactly one week later, on March 22nd, they filed a motion for reconsideration, pointing out due process problems and substantive problems, and asked for expedited briefing on that without getting any additional briefing the district court denied at the same day.

[00:06:13] Speaker 03:
So does the privilege belong at that point to Dr. Dorseyette or to Quinn?

[00:06:20] Speaker 01:
So it belongs to Dr. Dossier, but the problem, at least to my estimation, is that the order that she's issued on March 15th actually is only, I think, understandable as saying the privilege is gone retroactively.

[00:06:36] Speaker 01:
So nobody has it.

[00:06:37] Speaker 01:
going back to 2017.

[00:06:40] Speaker 01:
And that's actually consistent for what it's worth with the way Columbia itself described the effect of her March 15th order.

[00:06:47] Speaker 01:
This is at Appendix 43-922, where when they're doing their motion to show cause for contempt, this is later, they describe her March 15th order as finding, quote,

[00:06:57] Speaker 01:
There was no attorney-client privilege between Dossier and Norton's counsel during the period when counsel's reputation of Norton resulted in a conflict with its performative representation of Dossier.

[00:07:09] Speaker 01:
So the way I understand the order is

[00:07:11] Speaker 01:
I mean, you know, you can't comply with it without going to dossier and having dossier sort of waive an attorney-client privilege.

[00:07:18] Speaker 01:
But the premise of the order is that the privilege is already gone.

[00:07:21] Speaker 01:
That's why she thinks that she can order Queen Emanuel.

[00:07:24] Speaker 03:
Dr. dossier could have waived it, but could have also have claimed it or invoked it.

[00:07:30] Speaker 01:
Yes, but I think the second this order comes down, Quinn's in an impossible position, right?

[00:07:35] Speaker 01:
And this didn't happen.

[00:07:37] Speaker 01:
I want to be clear.

[00:07:37] Speaker 01:
I don't want to be accused of misrepresentation.

[00:07:39] Speaker 03:
It sounds to me like you're saying at that point there was nothing that you could do.

[00:07:42] Speaker 03:
The decision had been made, so we went forward.

[00:07:46] Speaker 01:
I don't think there was anything that they could do that wasn't entirely problematic because of the nature of the order.

[00:07:54] Speaker 01:
Because I think what they would have had to do, and this didn't happen, but what they would have had to do is go to Dr. Dossier and say, look, there's this order, the premise of which is that the attorney-client privilege has been vitiated going back to 2017.

[00:08:07] Speaker 01:
We think that's fundamentally wrong.

[00:08:09] Speaker 01:
I suppose you could try to make this issue go away by waiving your privilege at this point.

[00:08:14] Speaker 02:
No, but you preserve it.

[00:08:16] Speaker 02:
You do that to preserve the privilege.

[00:08:20] Speaker 01:
Absolutely.

[00:08:21] Speaker 01:
That's what we tried to do in the March 16th order.

[00:08:24] Speaker 00:
But you seem to argue in your brief, and this is one part where I find it a little difficult to accept, that you just didn't have time.

[00:08:31] Speaker 00:
Your argument seems to be like he's overseas in Saudi Arabia or wherever he is, and you didn't have enough time.

[00:08:38] Speaker 00:
Well, as it turned out, you had a lot of time.

[00:08:40] Speaker 00:
between things that happened.

[00:08:42] Speaker 00:
So even if you couldn't reach him in six hours, you also say, in fairness to you, that you wanted him to have time to think about it.

[00:08:49] Speaker 00:
You didn't want him to make a snap decision.

[00:08:51] Speaker 00:
But enough time passed that why didn't you at least try to do that?

[00:08:54] Speaker 00:
That could have at least taken the issue off of the table.

[00:08:57] Speaker 01:
So I think the timeline on this is important.

[00:09:00] Speaker 01:
Here's the problem.

[00:09:01] Speaker 01:
So we're told to comply on the record the next day.

[00:09:04] Speaker 01:
So I don't think there's time to get everything, all the bells and orders by the next day.

[00:09:09] Speaker 01:
So we tell the court on March 16th that we are not going to comply.

[00:09:14] Speaker 01:
Then by March 22nd, that's when we file the reconsideration motion, which is denied the exact same day.

[00:09:23] Speaker 01:
At that point, I want to see if I can get the exact date here, but by March 28th, Queen Emanuel withdraws from recommending dossier.

[00:09:35] Speaker 01:
So there is a sum total of, I guess that's, hate to do math in public, but 13 days between the March 15th order and the time that Queen Emanuel withdraws from representing dossier.

[00:09:49] Speaker 01:
So there's really no large increment of time

[00:09:53] Speaker 01:
where they could go to dossier.

[00:09:54] Speaker 01:
But I do want to be as clear as I can.

[00:09:56] Speaker 01:
I don't think that really matters in the end because the effect of her order on March 15th is to say the privilege is already gone.

[00:10:04] Speaker 01:
It's not a matter of waiving it.

[00:10:05] Speaker 01:
It's already gone.

[00:10:06] Speaker 01:
And that's what we say we're not going to comply with.

[00:10:08] Speaker 01:
That's what we try to get reconsidered.

[00:10:10] Speaker 01:
And the point I was trying to make before is I think it's very helpful to contrast the process here with the process that was given when Norton moved for sanctions against Colombia

[00:10:21] Speaker 01:
for the unauthorized contact with dossier.

[00:10:25] Speaker 01:
Because on that motion, you had a party actually going into court and saying, we want sanctions against the other side.

[00:10:32] Speaker 01:
And then it was fully briefed.

[00:10:34] Speaker 01:
And both sides had their competing ethics experts.

[00:10:38] Speaker 01:
And we had the ability of the adversarial process to get to an answer.

[00:10:43] Speaker 01:
Frankly, I don't think the court got to the right answer.

[00:10:45] Speaker 01:
But that's neither here nor there.

[00:10:46] Speaker 01:
At least there was procedural due process.

[00:10:49] Speaker 01:
And one detail, but I think it's an important detail, is the ethics opinion that was offered by Columbia in that proceeding, their expert didn't have the benefit of the engagement letter.

[00:11:00] Speaker 01:
And I think that that expert not having the engagement letter very much colored the conclusions that that expert made.

[00:11:08] Speaker 01:
So I am anticipating that my friend's going to come up here and say, well, the due process violation wasn't as bad as it looks, because there were some briefing on conflicts back in the context of

[00:11:18] Speaker 01:
the Norton motion.

[00:11:19] Speaker 01:
Now, first of all, I don't think that remotely gets it done.

[00:11:21] Speaker 01:
It doesn't allow you to do the suesponte.

[00:11:24] Speaker 01:
But to me, it just illustrates that if you do this the right way, then you get the issues joined.

[00:11:29] Speaker 01:
You don't have people trying to supplement the record on appeal.

[00:11:32] Speaker 01:
You get the issues joined.

[00:11:33] Speaker 01:
You get competing experts who are actually dealing with the relevant provisions.

[00:11:37] Speaker 01:
In that context, that's what essentially got into the record, the engagement letter.

[00:11:42] Speaker 04:
There's clearly a due process problem here in the sense that she didn't have a hearing, because it looks like criminal contempt.

[00:11:51] Speaker 04:
But that's not a solution, because the result of our holding that would be to send it back for a hearing.

[00:11:59] Speaker 04:
to determine whether there was a contempt.

[00:12:01] Speaker 04:
Your argument is there can't be a contempt because the order was invalid.

[00:12:06] Speaker 04:
As I understand it, you're citing various cases like Eureka, which suggest that even if there's a conflict, the privilege continues to exist.

[00:12:17] Speaker 04:
And the counter argument is, well, you had an obligation in order to comply with the order to ask the client to waive the privilege, correct?

[00:12:27] Speaker 01:
I mean, I suppose the argument there that they would suggest is we had an obligation to do that.

[00:12:33] Speaker 01:
But I don't think that's right.

[00:12:34] Speaker 01:
I think that we would.

[00:12:35] Speaker 01:
Well, that's the question.

[00:12:36] Speaker 04:
Yeah.

[00:12:37] Speaker 01:
OK.

[00:12:37] Speaker 01:
I mean, but I still think at the end of the day, under the Fourth Circuit law, it's clear that if the March 15th order is procedurally or substantively invalid, then we can, on appeal, we can.

[00:12:49] Speaker 04:
Your argument is that the order didn't require them to put a manual to seek a wafer of approval.

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

[00:12:55] Speaker 04:
Just to produce the document.

[00:12:56] Speaker 01:
I think that's exactly right.

[00:12:58] Speaker 01:
And that's why I think with that language I read before, I think Columbia had it right when they were seeking a motion to show cause when they said what the order did was it said the attorney-client privilege was gone retrospectively.

[00:13:11] Speaker 01:
And the order is consistent with that, right?

[00:13:13] Speaker 01:
The order doesn't say go call up Dr. Dossier and see if they'll waive the privilege.

[00:13:19] Speaker 01:
If that's what the order said,

[00:13:21] Speaker 01:
I mean, if I were there in real time, I would have said, that's not a valid order either.

[00:13:24] Speaker 01:
And I might try to file a motion for reconsideration.

[00:13:26] Speaker 01:
But at least that would have been an order to go talk to Dr. Dossier, and it would presume that the privilege still exists.

[00:13:32] Speaker 01:
But that wasn't the order, as Your Honor points out.

[00:13:34] Speaker 01:
The order was, you disclose next day on the record in writing.

[00:13:38] Speaker 01:
And that's completely, substantively wrong.

[00:13:41] Speaker 01:
I mean, in my view, that's wrong soup to nuts.

[00:13:44] Speaker 01:
There's not a conflict that required the ceasing the joint representation.

[00:13:49] Speaker 01:
If there was a conflict, it would have been the kind of conflict that was waivable.

[00:13:52] Speaker 01:
And even if there were an unwaivable conflict, it wouldn't have vitiated the attorney-client privilege retroactively.

[00:13:59] Speaker 01:
And that's the only way to understand it.

[00:14:00] Speaker 03:
I was surprised that there wasn't an attempt to get a waiver here, just for predictive purposes.

[00:14:07] Speaker 01:
I mean, look, with the benefit of hindsight, there might be things that you do differently.

[00:14:11] Speaker 03:
But as I pointed out, the whole period between this order... That's pretty common practice in litigation practice.

[00:14:20] Speaker 01:
I mean, that may be, Judge Raina, but this is a pretty extraordinary order.

[00:14:24] Speaker 01:
I mean, again, and this isn't, as Judge Dyke pointed out, this isn't an order that says, go talk to your client and see if the way the privilege... I understand that, and that's why I'm still a bit puzzled as to why

[00:14:35] Speaker 03:
Quinn didn't jump on this and say, my god, we've got to do everything possible now to fight this, instead of just letting it go.

[00:14:44] Speaker 01:
But to the contrary, I think Quinn did everything it could to fight this.

[00:14:48] Speaker 03:
I was asking you if you followed a motion for reconsideration that same day.

[00:14:54] Speaker 03:
Did you seek a waiver?

[00:14:56] Speaker 03:
Did the client reassert its privilege?

[00:14:59] Speaker 01:
So and as I tried to respond in any event, on the 16th, they filed the motion that they weren't going to comply.

[00:15:06] Speaker 01:
And then six days later, on the 22nd, so a week from the order, six days from that, they filed a motion for reconsideration.

[00:15:15] Speaker 04:
OK.

[00:15:15] Speaker 04:
If we were to hold in the other case that the patent is invalid under 101, does that move this case?

[00:15:21] Speaker 01:
I don't think so, Your Honor.

[00:15:22] Speaker 01:
I think there's still that contempt sanction

[00:15:25] Speaker 01:
that contempt sanction still gives us, you know, kind of independent of the sort of the exact sanction.

[00:15:31] Speaker 01:
There's, you know, precision case by Judge Friedman says that they're still standing to appeal that.

[00:15:37] Speaker 01:
So, you know, I think if this whole case had gone away and the district court had rejected the patent on 101 grounds but still held

[00:15:46] Speaker 01:
Quinn in contempt, we would be able to appeal that, and we should have the right to get that vacated or reversed.

[00:15:52] Speaker 01:
And I think that's because of the reputational damage of a finding like this.

[00:15:56] Speaker 03:
If we were to send it back with it, would it be with instruction to provide you a hearing on the matter?

[00:16:03] Speaker 01:
I mean, I think that's the minimum that you could have.

[00:16:07] Speaker 01:
But as I indicated before, I actually think

[00:16:09] Speaker 01:
that the right result here is to just reverse the finding of contempt because it's based on an invalid order.

[00:16:15] Speaker 01:
And then if the rest of the case goes away, I think we're done.

[00:16:19] Speaker 00:
Yeah, the problem I have is the leap between reversing the contempt order.

[00:16:23] Speaker 00:
I get that.

[00:16:24] Speaker 00:
But based on the earlier order, whether we have to reach anything in the earlier order, if it's necessary for you, if we just say, assuming hypothetically that we get rid of this on 101, if we're enough to just get rid of the contempt order, we'll stop.

[00:16:40] Speaker 01:
I mean, I think it would be process.

[00:16:43] Speaker 00:
And we can get rid of it on any number of grounds.

[00:16:45] Speaker 01:
I agree, Your Honor.

[00:16:46] Speaker 01:
And I guess all I would say is, to me, I still think the most straightforward way to decide this is to just go back to the March 15th order, say the March 15th order didn't provide due process.

[00:16:55] Speaker 01:
It's invalid.

[00:16:56] Speaker 01:
And you can't have contempt on an invalid order.

[00:16:58] Speaker 01:
And the case is over.

[00:16:59] Speaker 01:
So let's just all go home.

[00:17:02] Speaker 04:
Thank you.

[00:17:02] Speaker 04:
We'll give you two minutes for removal.

[00:17:04] Speaker 04:
Mr. Woolen.

[00:17:12] Speaker 05:
Judge Dyke, may it please the court

[00:17:14] Speaker 05:
This appeal is much simpler than Quinn makes it seem.

[00:17:18] Speaker 05:
Quinn was sanctioned for not complying with a court order.

[00:17:21] Speaker 05:
In responding to the motion to show cause, Quinn made one and only one argument, that it had complied.

[00:17:27] Speaker 05:
That was wrong.

[00:17:29] Speaker 05:
The district court found it was wrong.

[00:17:31] Speaker 05:
Quinn doesn't challenge that finding here, and it would be reviewed for clear error in any event.

[00:17:36] Speaker 05:
That's enough to resolve this appeal.

[00:17:38] Speaker 05:
Of course, Quinn now says that it couldn't comply because of the attorney-client privilege.

[00:17:42] Speaker 05:
But there was a lot of evidence in front of Judge Laouc that Quinn was not representing dossier.

[00:17:48] Speaker 05:
It was shielding an adverse witness from appearing at trial.

[00:17:51] Speaker 04:
Chief Judge Laouc said that in the 20 plus years of the bench... There are all these cases, like your Weekend, Teleglobe, and FDIC, that say the existence of a conflict doesn't eliminate the privilege.

[00:18:02] Speaker 04:
Do you agree with those cases or disagree with them?

[00:18:05] Speaker 05:
I agree with them.

[00:18:06] Speaker 05:
It's black letter law.

[00:18:08] Speaker 05:
They're right about that.

[00:18:09] Speaker 05:
The client continues to hold the privilege.

[00:18:11] Speaker 05:
And a client who's being poorly represented by a lawyer thereby doesn't lose the privilege.

[00:18:15] Speaker 05:
Judge Lauk didn't say a word to disagree with that.

[00:18:18] Speaker 05:
Mr. Clement, in his brief Senate argument today... So the privilege exists until the client waives it, right?

[00:18:24] Speaker 05:
Yes, and it's very important, Judge Dyke, to understand what exactly Chief Judge Lauk said here.

[00:18:30] Speaker 05:
She didn't say, oh, I'm wiping out the privilege and all the rest.

[00:18:34] Speaker 05:
Chief Judge Lauk said, I have in front of me substantial evidence.

[00:18:38] Speaker 05:
that a firm is harming one client to help another.

[00:18:41] Speaker 05:
The firm acknowledges that it has misrepresented something to its client.

[00:18:45] Speaker 05:
It has told the client that I, the court, found that the firm is representing the client.

[00:18:50] Speaker 05:
And I specifically held that open in two separate orders, the court says.

[00:18:55] Speaker 04:
If the privilege is initiated by the conflict, how could the order be valid?

[00:18:59] Speaker 05:
And so that's what I'm getting to.

[00:19:01] Speaker 05:
What the court says is, look, I have substantial evidence in front of me that you may no longer be representing your client.

[00:19:08] Speaker 05:
I need, this is at page 72 of the appendix.

[00:19:11] Speaker 05:
She says, I determined once and for all, I need to get to the bottom of this.

[00:19:15] Speaker 05:
I need to look at these communications to determine whether there's an attorney client representation at all, whether you have a client that doesn't want to be represented by you anymore.

[00:19:25] Speaker 04:
Because the fact that they don't want to be represented anymore, even if you assume that that's true, doesn't vitiate the privilege.

[00:19:31] Speaker 04:
for the past either.

[00:19:32] Speaker 05:
That's right and the court didn't say I'm vitiating the privilege.

[00:19:35] Speaker 05:
The Virginia ethics rules say this is 1.6b1.

[00:19:39] Speaker 05:
You can provide it without getting rid of the privilege in response to a court order.

[00:19:43] Speaker 05:
The court didn't, Judge Lauck didn't say anything about setting aside privilege or all the rest.

[00:19:47] Speaker 05:
Judge Lauck said I have a lot of evidence in front of me.

[00:19:50] Speaker 04:
How can the judge order the disclosure of privileged information without a waiver from the client?

[00:19:56] Speaker 05:
Oh, well, look, I think separate argument whether the judge can order it publicly disclosed.

[00:20:01] Speaker 05:
I think if Quinn had attempted to comply by coming in and saying, we want to disclose it in camera, and the court has said no, I think it'd be a very different and more difficult case for me, Judge Dyke.

[00:20:11] Speaker 05:
But I think if this court had said, in camera, right?

[00:20:14] Speaker 00:
So we're going to decide this case on the fact that they didn't come in and say, can you undo your order and let us do it on camera?

[00:20:21] Speaker 00:
And that's the way this case should go down?

[00:20:23] Speaker 05:
I just think we need to be fair to the district court.

[00:20:26] Speaker 05:
The district court addressed the process points at three separate times in the record below.

[00:20:31] Speaker 05:
By my count at page 34351, pages 44, 66, and 470.

[00:20:36] Speaker 04:
Did she ever suggest that the submission in camera would satisfy the order?

[00:20:41] Speaker 05:
She did.

[00:20:41] Speaker 05:
In footnote 16 of the order that's under review, on page 91 of the appendix.

[00:20:47] Speaker 05:
91?

[00:20:48] Speaker 05:
That's right.

[00:20:48] Speaker 05:
The district court strongly suggested that if they had asked for in-camera

[00:21:03] Speaker 05:
If Quinn had ever, during the course of these proceedings here, attempted to comply, we'd have a different case.

[00:21:12] Speaker 05:
But to Judge Raina's questions, Quinn never consulted its client and never attempted to comply.

[00:21:18] Speaker 04:
And what Judge Lauch said was, look, I had them- So your theory is, given this order, they had to go to the client and ask the client to waive the privilege?

[00:21:28] Speaker 05:
I think that at the minimum, they had to discuss it with their client.

[00:21:31] Speaker 00:
It turns out we now know- But she gave them like 12 hours to do that?

[00:21:35] Speaker 05:
Oh, I agree.

[00:21:35] Speaker 05:
And if ultimately they had been deemed and held in contempt for a timeliness problem, Judge, first, just not being able to get it in in 24 hours, I agree they'd have a much better argument.

[00:21:46] Speaker 05:
But this has nothing to do with timeliness.

[00:21:49] Speaker 05:
The contempt here didn't turn on time with us.

[00:21:52] Speaker 04:
The contempt has entered a year and a half in September.

[00:22:00] Speaker 04:
to produce this material was invalid because there was an attorney-client privilege, correct?

[00:22:07] Speaker 04:
No.

[00:22:08] Speaker 04:
No.

[00:22:08] Speaker 04:
And why wasn't there an attorney-client privilege?

[00:22:10] Speaker 05:
Because the court always has the authority to look into misconduct before it involving lawyers and clients.

[00:22:16] Speaker 05:
And the court could say, you purport to have a client who's over in Saudi Arabia.

[00:22:21] Speaker 05:
That client for years has said he wanted to testify and has now made statements harmful to your client.

[00:22:27] Speaker 05:
You are coming in and saying to me, the judge,

[00:22:29] Speaker 05:
that he somehow changed his mind.

[00:22:31] Speaker 05:
And you've put in this one sentence unexplained declaration from him.

[00:22:35] Speaker 05:
Meanwhile, you are acknowledging that you have misrepresented to him that I made a finding that you represent him that I didn't make.

[00:22:43] Speaker 04:
Look, Quinn is not, in this case, covered itself with glory in the way it's behaved.

[00:22:48] Speaker 04:
But that's a different question than whether the order is valid or invalid.

[00:22:53] Speaker 04:
I'm trying to understand how there could be a valid order

[00:22:56] Speaker 04:
when the existence of a conflict doesn't vitiate the privilege.

[00:23:02] Speaker 05:
Because the very question before the court, Judge Dyck, is, is there an attorney-client relationship?

[00:23:07] Speaker 05:
Quinn is saying there is, and the judge is saying, I have a lot of evidence in front of me that that may not be true.

[00:23:12] Speaker 03:
At that point, shouldn't the court order in order to show cause?

[00:23:16] Speaker 03:
Well, so what the court says... I mean, these are significant rights that we're speaking about.

[00:23:21] Speaker 05:
I agree, Judge Raina, and that's why I think you've got to understand the procedural history, and I don't think no coin is fair to it.

[00:23:28] Speaker 05:
The judge says, look, I had a motion for sanctions.

[00:23:30] Speaker 05:
Then I had a motion, two motions in lemonade.

[00:23:32] Speaker 05:
Then I had your reconsideration motion.

[00:23:35] Speaker 05:
Then I had multiple rounds of briefing and hearings on the missing witness instruction.

[00:23:40] Speaker 05:
And then I had a full round of briefing on the motion to show cause.

[00:23:44] Speaker 05:
The judge says at multiple points, I have had more than a half dozen rounds of briefing on this.

[00:23:49] Speaker 05:
I've had more than a half dozen hearings.

[00:23:51] Speaker 05:
I've given you every opportunity to make every argument that you want.

[00:23:55] Speaker 05:
You have not attempted to comply.

[00:23:56] Speaker 05:
You haven't offered any explanation for your misrepresentation to your client.

[00:24:00] Speaker 05:
I still don't know why the client isn't here or whether you've talked to the client.

[00:24:04] Speaker 05:
And even after all of that, does not enter any criminal sanction, Judge Dike.

[00:24:08] Speaker 05:
Does not enter a fine.

[00:24:09] Speaker 05:
Doesn't refer any lawyer for disbarment.

[00:24:12] Speaker 05:
Says only you have deprived Columbia of some evidence of litigation misconduct that is relevant to the enhanced fees and damages questions.

[00:24:21] Speaker 05:
And so says a negative inference.

[00:24:22] Speaker 00:
But if we remind the clock, we're back at March 15th, I guess.

[00:24:27] Speaker 00:
It's a motion and eliminate before the district court judge.

[00:24:30] Speaker 00:
And suddenly, there's a footnote or something that requires issues of disclosure order, sua sponte, not raised by either party, not briefed.

[00:24:42] Speaker 00:
Full stop.

[00:24:43] Speaker 00:
I mean, we're talking about the disclosure order.

[00:24:45] Speaker 00:
The first instance of this, how this began, there might have been

[00:24:50] Speaker 00:
I think this is what Judge Raina is getting to.

[00:24:53] Speaker 00:
Wasn't there an obligation?

[00:24:54] Speaker 00:
Didn't the parties have the ability to present argument on that question?

[00:25:00] Speaker 05:
So they did present briefing and argument on the question in multiple different stages of the case?

[00:25:07] Speaker 00:
Before or after?

[00:25:08] Speaker 00:
Judge Prost?

[00:25:08] Speaker 00:
After she issued the order.

[00:25:10] Speaker 00:
But I want to step back.

[00:25:12] Speaker 00:
Is that good enough?

[00:25:13] Speaker 00:
I want to step back in time.

[00:25:14] Speaker 00:
I want to be fair to the district court judge, too.

[00:25:16] Speaker 00:
She had a lot on her plate.

[00:25:19] Speaker 05:
Really after I want to be very fair to her right if the court thinks that something went wrong here it ought to send it back

[00:25:26] Speaker 05:
This district judge said this was conduct that she had never seen in her 20 plus years on the bench.

[00:25:31] Speaker 05:
I think we ought to give her the opportunity to address it.

[00:25:33] Speaker 05:
I know exactly what a do-over would look like.

[00:25:36] Speaker 05:
I don't know why the other side thinks it was tough.

[00:25:38] Speaker 05:
Mr. Clement and I will brief whether there was anything wrong with this and whether Quint should be held in contempt.

[00:25:42] Speaker 05:
But to step back in time, Judge Prost, let's be fair to the district court.

[00:25:46] Speaker 05:
The district court says, I decided your motion for sanctions, Norton, and I left open the question of whether you were representing dossier because there was a real question in my mind about that.

[00:25:55] Speaker 05:
Then you came in with your motions and lemonade and told me take out everything at trial about the fact that dossier is not going to be here.

[00:26:02] Speaker 05:
But wait a minute, dossier said he wanted to be here.

[00:26:05] Speaker 05:
And now you're coming in and telling me he changed his mind.

[00:26:09] Speaker 04:
You're getting into things which don't have to do with the validity of this order, which might be a ground for sanctioning Quinn.

[00:26:17] Speaker 04:
But the order said.

[00:26:19] Speaker 04:
The privilege is gone because of the conflict.

[00:26:25] Speaker 04:
You've admitted that that holding is incorrect.

[00:26:29] Speaker 04:
The order rests on an incorrect premise.

[00:26:33] Speaker 04:
And you're now arguing, well, I could have arrested on the idea that the attorney-client relationship was terminated, but she didn't find that.

[00:26:41] Speaker 04:
And I don't see how that could be found without a hearing.

[00:26:44] Speaker 05:
How is it that we can sustain this order when on its face it seems to be invalid?

[00:27:00] Speaker 05:
The judge said at that point, you've admitted that you have misrepresented something in your client, and I want to get to the bottom of this.

[00:27:06] Speaker 05:
To your substantive point, the court didn't say, I'm finding that the privilege is out the window.

[00:27:12] Speaker 05:
The court said, and this is a page 72 of the appendix, the court says,

[00:27:17] Speaker 05:
In light of your misrepresentation to your client, which you acknowledge and do not dispute, I found it necessary to determine once and for all whether you actually represented Dossier or could represent Dossier in the future in front of me.

[00:27:31] Speaker 05:
And the only way the court had to do that, because Dossier was over in Saudi Arabia and Quinn was purporting to speak to him or speak for him, was to say, show me the communications, because I want to see if you've been misleading your client.

[00:27:44] Speaker 04:
She didn't decide the issue of whether they represented Dossier.

[00:27:47] Speaker 05:
That's exactly my point.

[00:27:49] Speaker 05:
She said, I have a lot of evidence.

[00:27:51] Speaker 05:
How can you base an order on something which you haven't decided?

[00:27:55] Speaker 05:
Well, that's not what she decided Judge Dyke.

[00:27:59] Speaker 05:
There's two separate questions, conflict and privilege.

[00:28:03] Speaker 05:
And we need to not conflate those two.

[00:28:05] Speaker 05:
Under Virginia law, once your client's interests materially diverge, you can no longer represent both clients.

[00:28:11] Speaker 05:
Both sides agree on that.

[00:28:13] Speaker 05:
We and Quinn agree that's the testament of Virginia law.

[00:28:15] Speaker 05:
That's a fact question about whether your client's interests have diverged.

[00:28:19] Speaker 05:
That goes to conflict.

[00:28:20] Speaker 05:
And the court says, there's now a lot of evidence in front of me that your interests have diverged and that you may no longer be representing dossier.

[00:28:30] Speaker 05:
I need to get to the bottom of that.

[00:28:32] Speaker 05:
The court didn't say, I'm waiving privilege, I'm setting aside any of those things.

[00:28:36] Speaker 05:
At that point, the privilege arguments weren't even really teed up for the court.

[00:28:41] Speaker 05:
The court was saying, I need to determine the threshold question of whether there's an attorney-client relationship at all.

[00:28:48] Speaker 05:
And you are preventing me from doing that, Quinn, by not handing over these communications.

[00:28:53] Speaker 05:
Now, we now know it's not because they're trying to protect the attorney-client privilege.

[00:28:57] Speaker 05:
On the public record?

[00:28:58] Speaker 05:
I'm sorry?

[00:28:59] Speaker 05:
On the public record?

[00:29:01] Speaker 05:
Well, yes.

[00:29:03] Speaker 05:
in two ways, right?

[00:29:04] Speaker 05:
Set aside the most recent dossier declaration and whether you consider that at all.

[00:29:08] Speaker 04:
You can't order them produced on the public record without making a determination of a lack of attorney of client service.

[00:29:15] Speaker 05:
So Judge Zike, I agree with you that the public disclosure is the one part of the order that I do think is potentially problematic.

[00:29:25] Speaker 05:
And if Quinn had come in and said, look, we want to comply.

[00:29:29] Speaker 05:
We've discussed this with our client.

[00:29:30] Speaker 05:
We want to comply.

[00:29:31] Speaker 05:
We'll give them to you in camera."

[00:29:33] Speaker 05:
And the judge had denied that.

[00:29:35] Speaker 05:
I think that might well have been an abuse of discretion, but that's not the way this played out.

[00:29:39] Speaker 05:
Because Quinn has never wanted to comply.

[00:29:42] Speaker 04:
Quinn doesn't want to turn over these emails for the obvious reason that... I don't see what authority you have for the idea that somebody held in contempt for invalid reasons as an obligation to say, you should modify your order so it's valid, so that I'm in contempt.

[00:29:57] Speaker 05:
Well, two things, Judge Dyke.

[00:29:58] Speaker 05:
One, we're reimagining the contempt order.

[00:30:01] Speaker 05:
The district judge here was very clear three times in the order at page 59 page 89 footnote 15 and page 94 to say Quinn has abandoned his privilege argument because in light of the Latham dossier emails dossier has already put in emails.

[00:30:17] Speaker 05:
What, what his conversations were with Quinn and he's given them to Latham and Latham has given them the court.

[00:30:23] Speaker 05:
So Quinn below, and this is at page 43 9 48.

[00:30:27] Speaker 05:
says any confidentiality concerns have been waived, their word, not mine.

[00:30:32] Speaker 05:
And the only reason they give that they shouldn't be held in contempt is they've substantially complied.

[00:30:37] Speaker 05:
And Judge Lauch, in her order, three separate times says, I understand Quinn's no longer challenging my underlying order because the privilege is off the table, because Dossier is attempting to get these things to me, and Latham has disclosed the emails.

[00:30:49] Speaker 05:
The only thing Quinn here is saying, the judge understood, is that they complied, and the judge said that's wrong.

[00:30:56] Speaker 05:
Now on appeal, Quinn has entirely reimagined this whole proceeding.

[00:31:00] Speaker 05:
It's become about the underlying order, which is not what was in front of the judge.

[00:31:04] Speaker 05:
And even with respect to the underlying order, Judge Dyke, they have re-characterized it as something it wasn't.

[00:31:10] Speaker 05:
You're right that the privilege belongs to the client, but the only way for the court to determine

[00:31:17] Speaker 05:
whether that privilege could be evoked and whether it applied, whether there was a relationship at all between the attorney and Dr. Dossier, was to look at those communications.

[00:31:27] Speaker 05:
But I will grant you that the one thing the court should have done that it didn't was to say, give them to me in camera.

[00:31:33] Speaker 05:
And if that were what they were complaining about, and if that were the basis for the contempt finding, we'd have a totally different case.

[00:31:40] Speaker 05:
And that's what the judge notes in footnote 16 and says, look,

[00:31:42] Speaker 05:
It's not like they asked me for in-camera.

[00:31:44] Speaker 04:
I likely would have done it.

[00:31:49] Speaker 05:
It's only invalid in a part they didn't challenge.

[00:31:54] Speaker 05:
In other words, they're not concerned about the public disclosure of the thing.

[00:31:59] Speaker 05:
They never spoke to their client, not for weeks, not for months, for years, their putative client.

[00:32:05] Speaker 05:
And that's the most remarkable thing about this case.

[00:32:08] Speaker 05:
Mr. Clement is standing here saying Quinn could not turn over these communications because it needed to protect any client privilege from a client who is actively attempting to decline their representation.

[00:32:19] Speaker 05:
who we now know had that representation thrust on him against his wishes, and who has told the court that if given the opportunity, he would disavow the privilege, but he was never consulted about it.

[00:32:29] Speaker 00:
Can I just move you on to the, you probably don't want to answer this or can't answer this, but what Judge Dyke asked Mr. Clement earlier, which is assuming hypothetically this case, the merits case, goes down on 101 or even at a minimum on the enhancement of damages and

[00:32:48] Speaker 00:
the argument being made by the other side that you can't use this issue to enhance damages with respect to the particular infringement case we have before us.

[00:32:59] Speaker 00:
Does this issue go away?

[00:33:00] Speaker 00:
I mean, now, the judge, you can't control what the judge wants to do, sua sponte, I guess.

[00:33:06] Speaker 00:
But from your perspective, does this issue go away?

[00:33:09] Speaker 00:
So I would say two things, Judge Prost.

[00:33:11] Speaker 05:
No, I think in fairness to Mr. Clement, there is a law firm that still had a contempt to finding entered against it that I think it has standing to challenge, because it faces some separate harm from that order.

[00:33:24] Speaker 00:
No, but I'm assuming, I'm sorry, I'm assuming that we vacate the contempt order.

[00:33:29] Speaker 05:
If you vacate the contempt order, then I think the key is, are you reversing or are you vacating?

[00:33:36] Speaker 05:
If I were the district judge and this court said, we think there was a procedural problem here, then I think it should be sent back.

[00:33:44] Speaker 05:
If the court thinks that the district court had no power to look into these communications,

[00:33:50] Speaker 05:
even if maybe the procedurally didn't do it the right way.

[00:33:53] Speaker 05:
Then I suppose it would reverse.

[00:33:54] Speaker 05:
I think that would be a pretty remarkable thing to say.

[00:33:58] Speaker 05:
But the key point about the two appeals is the district court was very careful about this and said three separate times.

[00:34:05] Speaker 05:
This is pages 120.

[00:34:07] Speaker 05:
127 and 140 of the appendix, that it was doing the enhanced damages totally independent of the negative inference.

[00:34:15] Speaker 00:
I think that she said possibly.

[00:34:18] Speaker 00:
I use the word possibly.

[00:34:19] Speaker 00:
And the day she issued the two the same day, and in her order, contempt order, didn't she link it to the negative inference for purposes of enhancement?

[00:34:29] Speaker 05:
So Judge Post, I think Chief Judge Lauc was quite careful about this.

[00:34:32] Speaker 05:
And I want to actually just read what she said.

[00:34:35] Speaker 05:
She said, on balance, and even without considering the court's negative inference towards Norton regarding the unproduced communications, which are the subject of the court's separate order and opinion on the motion she'll cause, the read factors as a whole show that Norton's conduct in this case

[00:34:50] Speaker 05:
has been sufficiently egregious toward and hamits damage.

[00:34:53] Speaker 00:
And she also said, quote, it was possible that this record might support treble enhancement under read, even absent consideration of the negative inference.

[00:35:05] Speaker 05:
Oh, OK.

[00:35:05] Speaker 05:
So three things.

[00:35:06] Speaker 05:
First, she starts off in the language I read and said, in general, the read factor is supportive without the negative inference.

[00:35:11] Speaker 05:
Then on the one factor, litigation misconduct where it's relevant.

[00:35:14] Speaker 05:
She says at page 127, I would find this factor ways even without the negative inference.

[00:35:19] Speaker 05:
Then at page 140, in the passage you are reading, she does the multiplier.

[00:35:24] Speaker 05:
But I read that sentence differently.

[00:35:27] Speaker 05:
What she says is, look.

[00:35:30] Speaker 05:
I could have gone to 3x in this case.

[00:35:32] Speaker 05:
I could have done it even without the contempt stuff.

[00:35:35] Speaker 05:
I could have gone all the way to 3.3x, but I'm not doing that.

[00:35:38] Speaker 00:
So you think the negative inference was the difference between 2.6 and 3?

[00:35:43] Speaker 05:
We have to, in order to make sense of everything she says, right?

[00:35:47] Speaker 05:
Let's look at it in context.

[00:35:48] Speaker 05:
She says at the beginning, set aside the negative inference.

[00:35:51] Speaker 05:
I find the factors in general way in favor of enhancement.

[00:35:55] Speaker 00:
Forget the negative inference.

[00:35:56] Speaker 00:
All of the stuff in her opinion relies on Dr. Darcy A and the conduct.

[00:36:01] Speaker 00:
Even absent the negative inference, let's assume hypothetically that if it survives 101, we still think that you couldn't have done used actions and conduct related to a different patent.

[00:36:14] Speaker 00:
that wasn't the subject of the enhancement.

[00:36:17] Speaker 00:
As a matter of law, you can't go there.

[00:36:19] Speaker 00:
So that goes away.

[00:36:21] Speaker 00:
That amount goes away.

[00:36:22] Speaker 00:
Or it has to have a do-over to just rely on what went down with respect to this case outside of any conduct dealing with Dr. D'Arciet, right?

[00:36:30] Speaker 05:
So I think the judge is clearly correct that if there was a litigation misconduct with respect to the other patents, the court could still consider that as part of the patent of litigation pattern

[00:36:42] Speaker 05:
litigation misconduct in determining whether it enhanced damages.

[00:36:45] Speaker 05:
But at page 140, all it says in the passage you read Judge Prost is, I find seven of eight factors, so that's 87%.

[00:36:52] Speaker 05:
That's a 2.6x multiplier.

[00:36:54] Speaker 05:
The court said I'm not doing a qualitative weighing, not looking at the misconduct, I'm just doing pure math.

[00:37:00] Speaker 05:
And on the litigation misconduct, and this is the key point Judge Prost,

[00:37:03] Speaker 05:
When the court does dossier, it's one of four categories on that one factor.

[00:37:08] Speaker 05:
And even with respect to dossier, the court does not focus on what Mr. Clement and I are talking about on contempt.

[00:37:14] Speaker 05:
It only talks about the mishandling of dossier as a witness, the fact that he doesn't show up at trial.

[00:37:20] Speaker 05:
And everybody acknowledges that that happened.

[00:37:22] Speaker 00:
But the enhancement under the statute, the enhancement is for the infringement.

[00:37:25] Speaker 00:
It's up the infringement amount.

[00:37:27] Speaker 00:
the infringement, the finding of infringement with respect to particular claims and particular patents is outside of Dr. Darsier and what his testimony was and anything doing with trial.

[00:37:39] Speaker 00:
His was in connection with inventorship and fraudulent concealment, right?

[00:37:42] Speaker 00:
And the jury didn't find for you all on that issue.

[00:37:45] Speaker 00:
Well, that's right.

[00:37:45] Speaker 05:
But because we didn't have Darsier's testimony, right?

[00:37:49] Speaker 05:
If we had had Darsier there saying on this.

[00:37:51] Speaker 00:
OK, but so you think she can award enhancement?

[00:37:54] Speaker 00:
I mean, that's a pretty

[00:37:57] Speaker 00:
long road to get to enhancement of the damages that the jury found to connect them to that.

[00:38:04] Speaker 05:
No, I think it's, I think it's your point to now Norton, not Quinn in the first appeal, which is you don't get to have your cake and eat it too.

[00:38:11] Speaker 05:
If you want to say that the closeness of the case is the entire action, then when we get to litigation misconduct, we have to look at the misconduct that the lawyers committed throughout the entire case, not with respect to only whichever claims the jury found infringement on.

[00:38:26] Speaker 00:
OK, I'm sorry.

[00:38:27] Speaker 00:
I've led you down this road.

[00:38:29] Speaker 00:
This is probably an issue which we explored more

[00:38:32] Speaker 05:
But Judge Lauk addressed this.

[00:38:33] Speaker 05:
Judge Lauk sort of said, look, this was all a pattern of misconduct by Norton's lawyers.

[00:38:40] Speaker 05:
They re-litigated issues.

[00:38:42] Speaker 05:
They engaged in improper cross-examination despite my repeated warnings.

[00:38:47] Speaker 05:
And then as part of that pattern says, not all the stuff we're focused on for contempt, but says, and they had dossier, and they could have produced him for trial.

[00:38:57] Speaker 05:
But they didn't keep him posted on trial, and he didn't come.

[00:39:00] Speaker 05:
And that's from the Latham dossier emails.

[00:39:02] Speaker 05:
That's nothing to do with contempt.

[00:39:04] Speaker 05:
Those are in front of the judge at the time, well before the contempt firing.

[00:39:08] Speaker 00:
OK.

[00:39:08] Speaker 00:
We don't want to get into a fight.

[00:39:09] Speaker 00:
I'll let you down.

[00:39:10] Speaker 03:
I have just a couple of questions.

[00:39:13] Speaker 03:
Would you say that the March 15th order vitiated your attorney-client privilege?

[00:39:19] Speaker 05:
I think the March 15th order was designed to figure out whether there was an attorney-client relationship that could give rise to privilege.

[00:39:28] Speaker 03:
I think the court had in front of it a law firm that was claiming... Would you say that that order reads to question the attorney-client privilege or to infer that it does not exist?

[00:39:39] Speaker 05:
I don't think the order... I think, again, we have to separate out two separate questions.

[00:39:44] Speaker 03:
That's what I'm trying to do.

[00:39:45] Speaker 03:
And I'm trying to get your response focused on the March 15th order with respect to the attorney-client privilege.

[00:39:53] Speaker 03:
It seems to me that, as a result of that order, that the privilege no longer exists, at least in the court's mind.

[00:40:01] Speaker 05:
Well, I think the court thought there was a substantial question about that, Judge Rina.

[00:40:05] Speaker 05:
And this is the problem with the case.

[00:40:08] Speaker 03:
Let's just go with that.

[00:40:09] Speaker 03:
There's a significant question about that.

[00:40:13] Speaker 03:
Why did the court not, at that point in time, issue an order to show cause

[00:40:18] Speaker 03:
or to require that the parties appear in lemony.

[00:40:21] Speaker 03:
There's other ways to protect confidentiality.

[00:40:25] Speaker 03:
We're all familiar with redaction, right?

[00:40:27] Speaker 05:
No, I think Judge Raina, you got to put yourself in the district court's shoes, right?

[00:40:33] Speaker 05:
The other side keeps wanting to run together conflict and privilege.

[00:40:36] Speaker 05:
And what the district court said was, you admitted that you misrepresented to your client.

[00:40:42] Speaker 05:
You said, I told you that you're representing me, and I never said that.

[00:40:46] Speaker 05:
And you've never explained to me why you made that misstatement.

[00:40:49] Speaker 05:
So I've got some evidence in front of me that you're misleading your client.

[00:40:52] Speaker 05:
I have a lot of other evidence that your client wants to testify.

[00:40:55] Speaker 05:
He said that multiple times.

[00:40:57] Speaker 05:
And you're now telling me he's changed his mind, but he's not here.

[00:41:00] Speaker 05:
I have real questions about whether you are still fairly representing this client or you're disserving Dossier in order to serve Norton.

[00:41:08] Speaker 05:
And I need to get to the bottom of it.

[00:41:10] Speaker 05:
And Dossier is over in Saudi Arabia.

[00:41:12] Speaker 05:
So it's not like I can call him in for a hearing.

[00:41:14] Speaker 05:
But what I can do

[00:41:15] Speaker 05:
is I can look at the communications between you and your putative client to figure out whether you've been communicating and whether this client actually wants you to be representing it.

[00:41:25] Speaker 05:
As it turns out, the client didn't want to be represented, signed the 2020 declaration only because they demanded it,

[00:41:32] Speaker 05:
and later said in emails, Quinn has been pretending to represent me, but shielding me from trial, and that's clear to me now, because my testimony would, quote, be harmful, end quote, to North.

[00:41:41] Speaker 00:
Is this in the record?

[00:41:42] Speaker 00:
It is in the record.

[00:41:43] Speaker 05:
Those are the Latham-Dossier emails that were in front of the district court.

[00:41:47] Speaker 05:
That's Dossier's language on the eve of trial saying, if I had known that the trial was coming up in six days, I would have been there, but no one told me.

[00:41:57] Speaker 05:
I didn't even know.

[00:41:58] Speaker 05:
I would be happy to testify.

[00:41:59] Speaker 05:
I've always said that.

[00:42:01] Speaker 05:
And the judge says, wait a minute, Quinn, and to some extent Latham, you just told me that your client made a voluntary decision not to testify at trial next week, and now you're submitting emails from the last 48 hours where your putative client says he would have been happy to testify if he had any idea that there was a trial going on.

[00:42:20] Speaker 05:
What is going on?

[00:42:22] Speaker 05:
And so Judge Raina, I don't think that the court was vitiating the privilege or setting it aside.

[00:42:27] Speaker 05:
I get that if they'd asked for in-camera review, I think that would have been the right thing to do.

[00:42:31] Speaker 05:
But what the court was saying was, look, I've had multiple rounds of briefing on this.

[00:42:36] Speaker 05:
You've known it was an open question.

[00:42:38] Speaker 05:
You've now misrepresented that open question to your client.

[00:42:41] Speaker 05:
We're going to get to the bottom of this.

[00:42:43] Speaker 03:
What would you say did the trial court mean for the sanctions to be punitive in nature?

[00:42:48] Speaker 03:
Not at all.

[00:42:49] Speaker 03:
I mean, that's the thing about reading this record.

[00:42:52] Speaker 05:
If you looked at what was in front of the district court... It makes a difference, correct?

[00:42:56] Speaker 03:
It does.

[00:42:57] Speaker 05:
But the district court's very clear.

[00:42:59] Speaker 05:
This is at pages 95 to 98 and 87 of the appendix.

[00:43:05] Speaker 05:
Judge Lauch says, I haven't seen conduct like this in my entire time on the bench.

[00:43:10] Speaker 05:
But she doesn't fly off the handle.

[00:43:11] Speaker 05:
She doesn't enter anything criminal.

[00:43:13] Speaker 05:
She says, I'm only doing civil sanctions.

[00:43:15] Speaker 05:
Civil sanctions require less procedure than criminal sanctions.

[00:43:19] Speaker 05:
And the only thing I'm going to do

[00:43:21] Speaker 05:
is I'm going to try to make Columbia whole.

[00:43:23] Speaker 05:
If Columbia had had Dossier testify at trial, that would have been relevant to the 643 claim.

[00:43:30] Speaker 05:
And they were not able to show that they were not able to have him at trial.

[00:43:36] Speaker 05:
And they weren't because of the misconduct of Dossier's lawyers.

[00:43:40] Speaker 05:
That misconduct is relevant to the post-trial motions.

[00:43:43] Speaker 05:
I haven't read it.

[00:43:44] Speaker 05:
And so the negative inference, that's it.

[00:43:45] Speaker 05:
Thank you, Mr. Hall.

[00:43:47] Speaker 05:
Mr. Collins, you have two minutes.

[00:43:53] Speaker 01:
Thank you, Your Honors.

[00:43:54] Speaker 01:
Just a few points in rebuttal.

[00:43:56] Speaker 01:
First of all, there was no waiver of the fundamental issues that we're raising here.

[00:44:02] Speaker 01:
And again, the timeline on this is important.

[00:44:05] Speaker 01:
But the reason that later in the contempt proceedings we're not making this argument is twofold.

[00:44:10] Speaker 01:
One, the judge has already definitively rejected it.

[00:44:12] Speaker 01:
But second, once we're off of the scene in representing dossier as of March 22,

[00:44:18] Speaker 01:
At that point, Latham, who's now representing only Norton and not Dossier, has a reach out to Dossier.

[00:44:26] Speaker 01:
And then Dossier shares certain emails with Latham, who's not representing Dossier.

[00:44:32] Speaker 01:
So in that sense, there's like the good old fashioned waiver of the privilege by giving it to a party who's not your lawyer.

[00:44:40] Speaker 01:
And so at that point, again, this is why it's very hard to unscramble the egg at this point.

[00:44:44] Speaker 01:
There's certainly no waiver.

[00:44:45] Speaker 01:
It's just a different situation kind of later in the case.

[00:44:48] Speaker 01:
Second of all, my friend makes a kind of, you know, sort of arduous effort to reconstruct this order.

[00:44:55] Speaker 01:
I think don't, you know, with all due respect, I think the best place to show Columbia's understanding of the March 15th order is what they told the district court in their motion for show cause for contempt.

[00:45:07] Speaker 01:
And this is at appendix page 43922 and 23.

[00:45:12] Speaker 01:
And I'm going to quote directly here.

[00:45:16] Speaker 01:
On March 15, 2022, the court found there was no attorney-client privilege between Dr. Marc Dossier and Norton's counsel during the period when counsel's representation of Norton resulted in a conflict with its purported representation of Dr. Dossier.

[00:45:34] Speaker 01:
So they understand.

[00:45:36] Speaker 01:
And it's the only way to understand the order that directs Quinn to turn over these communications.

[00:45:41] Speaker 01:
they understand that the order has vitiated the privilege.

[00:45:45] Speaker 01:
It doesn't make any sense.

[00:45:47] Speaker 01:
The idea that while the judge just had some suspicions that the attorney-client relationship had ended, and so it was making an inquiry to get to the bottom of that, then if that were the order, it would be phrased differently, and it would plainly require everything to be submitted in camera.

[00:46:04] Speaker 01:
The reason that the judge didn't require this stuff to be submitted in camera is because she had vitiated the privilege.

[00:46:10] Speaker 01:
So just two last points in closing.

[00:46:13] Speaker 01:
One is I find it kind of staggering that Columbia gets through its entire briefs before this court without ever acknowledging that there was an engagement letter here.

[00:46:22] Speaker 01:
And I do think in thinking about all these issues and all the equities, you should look at that.

[00:46:26] Speaker 01:
It's in appendix 16.566 and 67.

[00:46:30] Speaker 01:
And this idea that there wasn't an attorney-client privilege is really hard to swear with a retention letter that clearly extends

[00:46:36] Speaker 01:
for the entire litigation, not just the deposition, and says it can only be terminated in writing.

[00:46:42] Speaker 01:
Last point, and I made this, but I think it's worth just underscoring the invalidity of this order for procedural reasons as well as substantive reasons.

[00:46:49] Speaker 01:
The contrast between the handling of Norton's actual motions for sanctions

[00:46:54] Speaker 01:
where both parties bring in ethics experts, and these motions eliminate.

[00:46:59] Speaker 01:
It's night and day.

[00:47:00] Speaker 01:
This is not how you issue an order that vitiates the privilege.

[00:47:04] Speaker 01:
It was a clear procedural error and a substantive one as well.

[00:47:07] Speaker 01:
Thank you.

[00:47:08] Speaker 04:
Thank both counsel.

[00:47:09] Speaker 04:
The case is submitted.