In what’s already been a headline-grabbing saga, the litigation between Austin legal recruiter Robert Kinney and employee-turned-competitor Evan Jowers just got uglier, with harsh words now aimed at the magistrate judge handling the discovery issues in the case.
U.S. Magistrate Judge Andrew Austin on Monday ordered Jowers and his attorney, Robert Tauler, to reconsider a brief filed by Jowers last week in response to an order to show cause for why he and Tauler should not be sanctioned for conduct that Judge Austin described in an earlier ruling as “an abusive approach” to “scorched earth discovery tactics.”
Judge Austin ordered the clerk of the U.S. District Court for the Western District of Texas to seal the Jan. 5 filing and, until Jan. 18, is giving Tauler and Jowers the option to review and “amend, withdraw or otherwise repair” the filing.
In Jowers’ Jan. 5 brief, obtained by The Texas Lawbook last week while it was still public, Jowers said that a Dec. 18 order by Judge Austin included “sensational” language aimed at Jowers and and Tauler in order to get “the media attention you apparently crave.”
“In my opinion, in my case you have been grossly negligent in your duties as a magistrate judge,” Jowers wrote in his brief. “Judges like you are the reason most Americans who are frivolously sued … don’t trust the court system to defend themselves, even if they can raise the funds.”
Judge Austin’s December ruling addressed 10 separate motions brought by the parties — eight by Jowers and two by Kinney. Those motions were varied in nature, but they were primarily disputes 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 Kinney should be sanctioned for not showing up to depositions.
In the December order, Judge Austin generally took issue with the high volume of motions filed by Tauler and Jowers, which Judge Austin said wasted the court’s time and resources. Judge Austin said Jowers and Tauler filed these motions even after he warned the parties — including Jowers’ former counsel at DLA Piper — during a May 2020 hearing to focus on the substance of the case instead of procedural fights that only waste time and money.
Per Judge Austin’s December order, Tauler also filed his own show cause brief. The separate brief is not subject to re-review per Monday’s order. While Tauler filed Jowers’ brief on his client’s behalf, Tauler stated in a cover letter that he advised Jowers to obtain independent counsel in preparing his response and that he did not review Jowers’ filing before submission.
“If he has since read it, Mr. Tauler likely regrets his decision to submit it sight unseen, given how much of it is not appropriate or, frankly, helpful, in response to an order to show cause,” Judge Austin wrote in Monday’s ruling. “Why an attorney would ever file a document authored by his client without first reading it is a mystery to the undersigned. By doing so here Mr. Tauler did not do Mr. Jowers any favors.”
Beyond its criticisms of the judge, Jowers’ 33-page brief details Kinney’s alleged reputation as “the most litigious person in Austin” who has sued “just about all of his successful former colleagues,” his alleged intimidation tactics of witnesses during depositions and Kinney and other members of his legal team’s refusal to speak with Tauler by phone.
“When a court is considering whether to impose discovery sanctions against a party to a case (as opposed to that party’s attorney), the primary question is whether the conduct or actions at issue took place at the instruction of the client, or instead were actions that the attorney himself decided to take,” Judge Austin wrote. “Mr. Jowers, however, addresses far more than that in his response, going well beyond the simple question of who decided to file the discovery motions. He goes into detail to express his feelings about this lawsuit, the plaintiff, the court, the judicial system and much more.”
Tauler’s brief mostly focuses on legal arguments for why sanctions against him and Jowers are not warranted, why he did not act in bad faith in filing the discovery motions and what steps he has “undertaken to rectify the court’s perception that Jowers and his counsel are not treating the court’s rules” and “limited resources with the respect they deserve.”
Tauler argued that he followed Fifth Circuit precedent and the Federal Rules of Civil Procedure. He also included emails in which he disagreed with legal strategies brought by Jowers’ prior counsel at DLA Piper (strategies which Judge Austin also criticized) that Tauler said were a distraction from Jowers’ highest priorities in the case.
Tauler joined Jowers’ legal team last year while the DLA Piper team, which had included Marc Katz and James Bookhout, were still Jowers’ lead lawyers. They withdrew last June. Because Tauler had been admitted to the case on a pro hac vice basis, Judge Austin ordered for an attorney licensed to practice in Texas and the Western District to appear in the case by Jan. 5.
Tauler and Jowers said in their motions that Tauler was licensed to practice in Texas Dec. 31 and that he opened an office in Austin Jan. 5. Although he admits it doesn’t fully resolve Judge Austin’s request, Tauler asked Judge Austin to take his recently-obtained license into consideration. Judge Austin did not address that request in Monday’s ruling.
Jowers and Kinney have been courtroom opponents for nearly four years. The litigation began in the spring of 2017 after Jowers, who had worked for Kinney Recruiting for a decade and spearheaded the firm’s growth in Asia, left to build his own firm. Jowers claims in court filings that his December 2016 departure from Kinney represents an escape from “corporate bondage” that involved Kinney withholding $2 million of Jowers’ earned commissions, threatening legal action if Jowers were ever to pursue a legal recruiting career elsewhere and stealing upcoming commissions to hamper Jowers’ ability to pay legal fees should a lawsuit come.
Kinney alleges Jowers stole trade secrets when he departed, owes him for an unpaid loan and advances against commissions, ran up outrageous expenses while he worked for Kinney and violated a noncompete agreement.
The case is 1:18-cv-00444-RP in the U.S. District Court for the Western District of Texas.