Annals of law (#9 in a series)

By way of Overlawyered, I found this ABA Journal article. I note it here because I believe this is, literally, the kind of situation you only see maybe once in a lifetime.

Akin Gump Strauss Hauer & Feld was representing a company, LBDS Holding Company, in a lawsuit against another company, ISOL Technology. Details of the suit can be found here, but I’m not sure they’re important. The key point is that Akin Gump won a $25 million judgement for LBDS Holding against ISOL.

ISOL and their legal team filed a motion for sanctions under Rule 11, claiming that “LBDS and its principals manufactured and falsified evidence used in this litigation, testified falsely, and committed a fraud upon this Court.”

Sounds like the kind of routine motion you’d expect the losing party to make, right? Well, Akin Gump had to respond to the motion, of course, so they did their due diligence and spoke with their client.

…when firm partner Sanford Warren discussed the sanctions motion with a client representative on May 15 the rep admitted “that the allegations in the [sanctions] motion were ‘essentially correct,’ ” the Akin Gump motion says. A “Cerner” contract relied upon by the plaintiff at trial “was not authentic,” the motion says, because an actual contract “had been altered and had certain schedules attached to it which were forgeries.”
Additionally, a client representative “said that those on the [conference] call [with Warren] had set up a fictitious domain name and sent emails from that domain name to create the impression that certain emails, introduced into evidence at the trial of this case, were sent by Cerner Corporation, when in fact they were not,” the Akin Gump motion continues.

So let me recap, just to make things clear: the plaintiff knowingly and willfully falsified evidence in their civil suit. That’s not just “case thrown out of court” bad, that’s not just “defendant awarded sanctions” bad; that’s “people are going to prison over this” BAD.

Akin Gump seems to have been unaware of the fraud until the plaintiff’s representatives confessed. At that point, they filed their own motion concurring with the motion by the defendants, providing their own account of what the plaintiff’s reps had said, and withdrawing from further representation. That motion is attached to the ABA Journal article, and makes excellent reading if you (like me) are a connoisseur of legal motions.

I can’t recall ever hearing of another case where the plaintiff committed this kind of serious fraud. (Maybe the Chevron case or the Nicaraguan banana pesticide case, but both of those had elements outside of the United States that influenced events; the LBDS/ISOL case, in contrast, was entirely domestic.) It boggles my mind that they thought they could get away with it. But the scary thing is, they almost did. I do wonder when ISOL found out about the fraud; is it possible that they knew all along, and were just holding back the information? Something like a hidden ace, just in case the verdict didn’t go their way?

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