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Brooks Schuelke
Brooks Schuelke
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Frivolous Defenses, part 3

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I have a long-held belief that one of the root causes behind the increase in cost of litigation is the occurrence of more and more frivolous defenses asserted by insurance companies and defense lawyers. Today marks my third story about frivolous defenses, and this story comes from a 2006 patent case in Tyler. That case involved a suit against Microsoft. The judge found that Microsoft’s improper conduct included:

1. Not producing a critical e-mail until the day before trial despite evidence that Microsoft’s attorneys had the email in their possession for over a year.

2. Failing to timely produce data from a database (and even allowing a Microsoft witness to testify that the data didn’t exist) despite the Microsoft lawyers having the data in their possession.

3. Allowing a Microsoft witness to prepare and testify about an inaccurate summary of the database data when they knew the summary was not accurate.

4. Allowing another Microsoft witness to give false testimony (under the dubious guise of a “mistake”).

5. Marking 3,449 exhibits as potential trial exhibits when only 107 of those exhibits were introduced at trial.

As punishment for this conduct, the Court entered an order awarding the plaintiff $2,300,000.00 in attorneys’ fees and “enhanced” the damages by $25,000,000.00

Unfortunately, this type of conduct is pervasive, but it isn’t sanctioned enough. If judges would be more proactive about sanctioning the parties that abuse the system, it might help decrease the cost in many litigation cases.