Biglaw

Kirkland & Ellis Ripped In Blistering Benchslap

Why do lawyers have to make things difficult?

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The most straightforward dispute in the legal recruiting world involves a recruiter jumping from one agency to another and along the way allegedly appropriates trade secrets and violates non-solicitation agreements. The former employer then — if not resolved amicably — has to file a lawsuit and lay out all the recruiting activity the ex-employee has been doing in breach of these obligations to the former firm. Pretty simple, right?

That’s what Kinney Recruiting thought too.[1] They sued a former employee, who refused to comply with discovery, arguing that he didn’t control the documents of the supposed new firm even though the domain name of the new company was his name and he signs all of their contracts. Given this intransigence, Kinney also subpoenaed Kirkland & Ellis, where the former employee allegedly placed people in breach of the obligations to Kinney. Also pretty simple.

K&E decided to make it difficult.

First, they objected to service. Then, after it was re-served, partner Will Pruitt objected to the subpoena, saying Kinney needed to get everything from the former employee. Kinney offered to narrow the subpoena but explained that they needed these relatively easy to procure documents because the defendant was not complying with discovery. After refusing to cooperate with a narrower request — twice — Kirkland also threatened to seek fees if Kinney filed a motion to compel. After one more, unanswered, plea for cooperation,

Kinney filed a motion to compel.

Robert Kinney, Kinney Recruiting

K&E replied by claiming to already be working on the request and asking that the motion be dropped. Kinney, having not been born yesterday, refused to drop the motion until K&E produced the documents. He even offered to drop the motion if K&E would just stipulate that they were trying to comply, but Pruitt refused to even do that and instead responded to the motion to compel.

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United States Magistrate Judge Andrew W. Austin — who sits in Austin, which one can only assume is some kind of power-up — was not pleased with Kirkland’s conduct. The line “petty, technical, [and] overly-argumentative” comes up:

The Court could not be more disappointed with the manner in which K&E has handled this subpoena. Pruitt’s petty, technical, overly-argumentative emails are a study in what is wrong with civil discovery in our court system today. The subpoena at issue sought a very small amount of uncontroversial information. None of it was privileged or confidential. MWK had served similar subpoenas on other “BigLaw” firms, all of which produced documents without objection. K&E’s approach, however, was to evade, complain, and refuse. The fact that these actions were taken by a law firm makes it all the more frustrating. If anyone should know better than to act this way one would think it would be a law firm that touts itself as having “lawyers [who] employ innovative pragmatic strategies.” There was not a single thing that K&E did to respond to this subpoena that was “pragmatic.” Despite the countless hours Pruitt spent writing emails, K&E eventually produced the requested documents—but it forced MWK to file a motion to compel before it did so. Pruitt could have saved K&E, as well as MWK, thousands of dollars in attorney time by being cooperative up front. Instead, he chose to fight, forcing all parties, the Court included, to expend resources unnecessarily.

Yikes. This would be a scathing enough rebuke, but Kirkland & Ellis had already decided to ask for more having followed through on Pruitt’s original threat to seek fees for responding to the motion to compel, which Magistrate Austin found particularly galling:

But this is not the end of things. Having chosen the stubborn route, K&E also audaciously requests that the Court award it the attorney’s fees it incurred in picking this fight. Recall that in the first week of February, Kinney offered to accept as sufficient exactly what K&E finally produced two months later. K&E refused, and instead forced Kinney to wait two months, write a dozen more emails, and then file a motion to compel. Kinney even repeated that same offer multiple times before he filed the motion. Yet K&E somehow thinks that it should be awarded attorney’s fees. Apparently it believes obstinance is something worth rewarding. Far from it. If anything, K&E should count itself lucky that MWK did not request fees from K&E, as the Court would have been inclined to grant them. Because MWK did not, the Court will express its disapproval of K&E’s actions only in words and not dollars. Either way, K&E should be embarrassed.

The lesson here is when a party is bending over backward to make compliance as painless as possible, just go ahead and comply. Entities like K&E always worry about the precedent they might set complying third-party subpoenas willy-nilly, but rather than fight it, that’s all the more reason to reach out to a cooperative party and come up with some sort of stipulation to hand over non-privileged and non-confidential documents voluntarily.

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It’s pretty simple.

(I’m throwing the whole opinion up on the next page…)

[1] The party to the case is MWK Recruiting, but the dispute is about an employee of the more familiar Kinney Recruiting. By means of full disclosure, Kinney is a longtime advertiser on this site, but that doesn’t really factor into our analysis here.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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