A magistrate judge in Austin has ordered a legal recruiter and his attorney to show cause for why they should not be sanctioned for what he called “an abusive approach” to “scorched earth discovery tactics” in a trade secrets case.
In a scathing, 19-page order issued Friday, U.S. Magistrate Judge Andrew Austin denied a slew of discovery-related motions brought by recruiter Evan Jowers and his Los Angeles-based attorney, Robert Tauler, related to an ongoing dispute between Jowers and Austin legal recruiter Robert Kinney. Judge Austin is giving Jowers and Tauler until Jan. 5 to brief him on why they should not be sanctioned for costs Kinney has incurred responding to their “baseless motions.”
The ruling arrives in the middle of a discovery battle between Jowers and Kinney that is set to end in February as the case phases into either summary judgment or trial.
“The conduct by Mr. Jowers and Mr. Tauler evidenced in the 10 motions addressed here is deplorable,” Judge Austin wrote. “It is the essence of what makes the public have low regard for lawyers. It is petty and unprofessional. And, most importantly, it has diverted the scarce judicial resources of this court from disputes far more deserving of the court’s time.”
Kinney, who is also serving as lead counsel for his side, told The Texas Lawbook that the judge’s order was “a welcome relief.”
“I’m looking forward to getting to trial on this thing and getting it over with,” he said. “It’s not the kind of hobby that a person ought to have. It will be nice when it’s over. Other than that, the order speaks for itself and I completely agree with what it says. … It’s not a great day if you’re on the receiving end, but it was well-deserved.”
Tauler told The Lawbook he was “very surprised and disappointed” by the ruling and that his side is considering an appeal to Robert Pitman, the district judge presiding over the case.
“I’m really shell shocked by what I read, and I don’t think it’s consistent with the facts, and I certainly expected to read something a little less sensational in response to legitimate discovery requests,” Tauler said. “I think most of discovery disputes are routine. I don’t know why there’s a sensational narrative attached to something so pedestrian. I really don’t understand that at all.
“We followed Fifth Circuit precedent and we followed the rules to the best of our ability,” he added. “This scathing opinion doesn’t cite any caselaw at all; it’s like we wasted our time. It’s very disheartening.”
The litigation between Kinney and Jowers, two colleagues-turned-competitors, began nearly four years ago as a trade secrets dispute after Jowers left Kinney’s firm to start his own. Since then, the allegations, the procedural history and the docket sheet that chronicles the battle have bloated in size and complexity. The litigation has also grown geographically, making appearances in courts in Hong Kong and New Orleans.
So too, have the discovery issues.
Judge Austin’s ruling addressed 10 separate motions brought by the parties over the last several months — eight by Jowers and two by Kinney. They vary in nature for what they ask Judge Austin to do, but they’re primarily arguments over protective orders; motions to compel; and whether Kinney, who is both an attorney and a key witness for his side, can view evidence marked as “attorneys’ eyes only,” and separately, whether he should be sanctioned for not showing up to depositions.
But as Judge Austin sees it, most of these motions could have been avoided had Tauler “made a reasonable, good faith effort to address the issues” with Kinney.
“One such motion is enough to raise a judge’s ire; eight of them pretty much guarantees there will be consequences,” the judge wrote.
Judge Austin also ordered Tauler, who originally appeared in the case pro hac vice, to find a local, Austin-based lawyer to appear on behalf of Jowers by Jan. 5. Tauler first got involved in the case earlier this year as co-counsel to Marc Katz, James Bookhout and Marina Stefanova of DLA Piper, but became Jowers’ lead lawyer after DLA Piper withdrew from the case.
It’s not the first time for Judge Austin to be ticked with the parties. During a status hearing in May, he scolded DLA Piper for filing a motion to quash subpoenas before conferring with the other side. At the same hearing, he said Kirkland & Ellis, a third party in the case, “should be embarrassed” for not immediately cooperating after receiving a subpoena from Kinney that sought information about attorneys Jowers had placed at their firm.
The case is 1:18-cv-00444-RP in the U.S. District Court for the Western District of Texas.