Plaintiffs’ lawyers representing about 20 crew workers aboard the Deepwater Asgard drilling rig in the Gulf of Mexico when Hurricane Zeta hit in October 2020 have asked a Houston judge to issue sanctions and possibly remove defense attorneys for Transocean Offshore Drilling for a “false and inflammatory” pretrial filing last week that the lawyers say “tainted the jury pool” and “deprived plaintiffs of their right to an impartial jury.”
Attorneys for Arnold & Itkin claim that opposing counsel at Ahmad Zavitsanos & Mensing should be disqualified from the Hurricane Zeta multidistrict litigation against Transocean, Triton Voyager Asset Leasing and BOE Exploration for allegedly violating the pretrial publicity provisions of the Texas Disciplinary Rules of Professional Conduct.
The sanctions demand stems from AZA’s court filing last week — and subsequent media coverage of the court filing — accusing lawyers at Arnold & Itkin and their medical experts of being involved in a secret financial scheme involving the plaintiffs’ medical expert witnesses and a private equity firm that is allegedly providing funding for the litigation. The lawyers for AZA last week asked Harris County District Judge Rabeea Collier, who is the MDL judge overseeing the Hurricane Zeta litigation, for permission to question Arnold & Itkin’s expert witnesses about potential financial incentives they could receive if the plaintiffs win the case.
In a 10-page court document filed Wednesday, Arnold & Itkin said the AZA filing was “intended to inflame and distract — not to serve any legitimate trial purpose.”
“Transocean makes false and unsupported allegations to attack plaintiffs and their counsel,” Arnold & Itkin attorney Kyle Findley wrote in the motion for sanctions. “As the court is aware, Transocean’s attorneys have a long history of tampering with witnesses and tainting the integrity of the judicial process.”
Arnold & Itkin accuses Transocean’s lawyers of pointing members of the news media — specifically The Texas Lawbook and Law360 — to publicly filed documents in the litigation in an effort to taint the jury pool. The Texas Lawbook published an article about AZA’s motion and other developments in the Hurricane Zeta litigation on Sept. 8. The article included only information from documents filed in the MDL.
“The long-standing and mutually beneficial relationship between AZA and its pocket-publisher, Texas Lawbook, compels the conclusion that AZA engaged in misconduct,” Findlay wrote in the petition. “The articles impugn the character, reputation and credibility of plaintiffs and their counsel by accusing them of ‘schemes’ and ‘misconduct.’”
The Arnold & Itkin sanctions motion argues that AZA violated Rule 3:07 of the pretrial publicity provisions of the Texas Rules of Disciplinary Procedure by making “extra-judicial statements about the proceeding.”
Rule 3:07 states that lawyers violate the pretrial publicity rule if they make statements that they know “will have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”
However, Section C of Rule 3:07 states that lawyers do not violate the rule by providing the news media “information contained in the public record.”
A legal expert who has reviewed Arnold & Itkin’s motion said lawyers with an intent to taint the jury pool would plant stories in the Houston Chronicle or The Dallas Morning News — not The Texas Lawbook or Law360 because articles from The Lawbook and Law360 are behind expensive paywalls and not available to the public and because The Lawbook‘s 16,000 subscribers are overwhelmingly business lawyers and corporate general counsel — “the last folks who would make it on a jury.”
Judge Collier is already considering sanctions against Transocean’s prior legal team for allegedly paying an ex-girlfriend of one of the plaintiffs for evidence that everyone agrees was protected by the attorney-client privilege.
In oral arguments Friday before Judge Collier, lawyers for Arnold & Itkin accused AZA of violating the judge’s prior orders related to an earlier motion in limine seeking to prevent AZA from asking witnesses questions about their litigation funding sources. The plaintiffs’ lawyers also want the trial, which was scheduled to start this week, to be delayed for 30 days.
Arnold & Itkin asked the judge to allow the lawyers to conduct discovery and said that subpoenas have been issued. AZA lawyers counter that discovery regarding the issue needs to be both ways and said they want to question Arnold & Itkin’s medical experts about the financial scheme.
Friday’s hearing before Judge Collier was broadcast on YouTube. However, when the time came for Judge Collier to give her decision, the video feed ended.
A review of court filings show that Judge Collier has not yet made a written ruling regarding the dispute over Arnold & Itkin’s motion in limine to prevent AZA lawyers from questioning expert witnesses about their billing and payment agreements.
The case is In Re Hurricane Zeta Litigation, MDL No. 22-0300.
Texas Lawbook Reporter’s Note: On the advice of legal counsel, a few facts for the record:
The Lawbook had not received a subpoena as of Sunday.
Texas Lawbook reporters, in an effort to cover more civil jury trials, started monitoring the Texas MDL docket as a source for possible upcoming trials during the past few months. Lawbook reporters identified the Hurricane Zeta litigation involving Transocean as one of the matters to start tracking several weeks ago.
The Lawbook identified the AZA’s pretrial motion without any assistance from any lawyers involved in the litigation.
The Lawbook contacted a lawyer at AZA about the document. The conversation lasted 14 minutes and was limited to the AZA lawyer pointing to publicly available documents. At one point, the AZA lawyer stated the Deepwater Asgard is about the size of a sports stadium. “Like Cowboys or NRG?” the reporter asked the AZA lawyer. “Yes,” the lawyer replied.
Finally, the Arnold & Itkin sanctions motion complains about the amount of media coverage AZA lawyers receive in The Lawbook when Arnold & Itkin lawyers have been quoted or cited just as many times in The Lawbook during the past 18 months as lawyers at AZA. The reason is simple: Arnold & Itkin and AZA are two law firms that take important civil disputes to trial.