Embarrassing: The Lawyers in GSUSA v. BSA

[dkurtenbach]

From Law360 Alerts:  An Order by the judge in the trademark litigation in the Southern District of New York between the Girl Scouts of the USA and the Boy Scouts of America. The case is in the initial "discovery" stage, in which the parties make requests to each other for documents and answers to written questions (interrogatories). Lawyers sometimes oppose such requests as not relevant to the issues in the lawsuit or as not proper under the rules governing discovery.  Apparently the lawyers have not been observing certain points of the Scout Law:  Helpful, Friendly, Courteous, and Kind.  The judge is emphasizing another point of the Scout Law:  Obedient.  "Merits" refers to the subject matter of the lawsuit - the trademark issue. "Sanctions" are fines that could be levied against the lawyers, based on a counsel's hourly rate times the number of hours spent on the dispute. 

 

Case Developments

August 6, 2019

Order

ORDER REGULATING DISCOVERY: The Court has read the joint letter of counsel of August 2, 2019 and is dismayed by the conduct of counsel reflected by their discovery disputes. The interrogatory and discovery demands of both sides are clearly relevant and proper, and should be answered, fully, promptly and responsively. Discovery is intended to advance the merits, efficiently and economically. It is not intended to create a tortured maze to hinder the other side. The Senior Counsel of each side-Rachel Kassabian and Bruce Ewing-shall meet personally at the courthouse for at least two hours, in a room assigned by the Clerk, on August 13, 2019, at 2:00 p.m., and jointly report to the court, on or before noon, August 16, 2019, identifying each interrogatory and discovery demand remaining in dispute, and why answers and production thereto, fully, promptly and responsively, will not be made by August 30, 2019. If any disputes remain, the Court will set a hearing date to rule thereon. Counsel should anticipate that sanctions are likely to be awarded, at two times the combined rates and time of the counsel involved in the dispute.

(Signed by Judge Alvin K. Hellerstein on 8/6/2019) (mro)

 

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[NJCubScouter]

Oof.  You don't want to be on the receiving end of an order from an unhappy judge.

[dkurtenbach]

It's bad enough that two organizations claiming to build character and promote high ideals are fighting each other in a lawsuit over something as trivial as a program name.  But then their lawyers are caught using slimy tactics and are sent to the corner like naughty children.  CSE Surbaugh should fire BSA's lawyers, then call the GSUSA CEO and work it out.  BSA has bigger fish to fry than this embarrassing mess.

Edited August 8, 2019 by dkurtenbach

[qwazse]

@dkurtenbach, this is a century-old fight. What the lawyers are trying to prevent from discovery is all of they ways each party had tried to impose more-or-less unwritten branding rules on the other for decades.

[ParkMan]

3 hours ago, dkurtenbach said:

It's bad enough that two organizations claiming to build character and promote high ideals are fighting each other in a lawsuit over something as trivial as a program name.  But then their lawyers are caught using slimy tactics and are sent to the corner like naughty children.  CSE Surbaugh should fire BSA's lawyers, then call the GSUSA CEO and work it out.  BSA has bigger fish to fry than this embarrassing mess.

The lawyers for each side would not be doing their job and fulfilling their obligation if they did not aggressively represent their clients.  It's silly to suggest that the lawyers should be following the Scout law inside the courtroom.  

It would be like saying race car driver needs to be a friendly, courteous driver in the midst of a race.

[dkurtenbach]

2 minutes ago, ParkMan said:

The lawyers for each side would not be doing their job and fulfilling their obligation if they did not aggressively represent their clients.  It's silly to suggest that the lawyers should be following the Scout law inside the courtroom.  

It would be like saying race car driver needs to be a friendly, courteous driver in the midst of a race.

Lawyers are officers of the court, with professional standards, the Federal Rules of Civil Procedure, local court rules, and civility standards. Compliance with those rules are part of their professional obligation.  The judge found their conduct crossed the line and is hitting them hard for it.  Beyond that, the lawyers apparently forgot who their clients are and what their clients stand for, risking reputational damage to their clients from their misconduct. That was dumb, not aggressive representation.

[ParkMan]

5 hours ago, dkurtenbach said:

Lawyers are officers of the court, with professional standards, the Federal Rules of Civil Procedure, local court rules, and civility standards. Compliance with those rules are part of their professional obligation.  The judge found their conduct crossed the line and is hitting them hard for it.  Beyond that, the lawyers apparently forgot who their clients are and what their clients stand for, risking reputational damage to their clients from their misconduct. That was dumb, not aggressive 

I read what you posted here and all it looks like to me is that the lawyers were making it difficult for the opposing side.  This case is stupid, but the ramifications of it are a big deal.  I am glad the counsel for the BSA is aggressively representing their cause.  

While I'd love it if everyone could hold hands and get along, I recognize that in some circles - like law, when you're in the midst of the case you have to push boundaries at times.  I saw nothing in what you posted that suggested unethical behavior.  Simply a judge who thought they were not playing nicely with each other and is telling them to get along better.  I am no lawyer, but this seems like a non-event.  Most respectfully, I'd encourage us to consider if we should choose to follow the Scout Law here and give these professionals the courtesy to not second guess their professional ethics on this and to be helpful by not trying to stir up more trouble for the BSA here.

 

Edited August 8, 2019 by ParkMan
grammer

[dkurtenbach]

1 hour ago, ParkMan said:

Most respectfully, I'd encourage us to consider if we should choose to follow the Scout Law here and give these professionals the courtesy to not second guess their professional ethics on this and to be helpful by not trying to stir up more trouble for the BSA here.

The judge has already ruled on their professional conduct.  And it is that conduct — in a prominent public forum — that reflects poorly on both of these  values- and character-based organizations.

[Eagle1993]

When we go out to sell popcorn this year, should we include the name of the law firm and case the proceeds will go to?  “Thank you for supporting scouts and Dewy Cheat’m and How and their legal council on GSUSA, Bankruptcy, Sledding accidents and other various legal proceedings”

[ParkMan]

3 hours ago, dkurtenbach said:

The judge has already ruled on their professional conduct.  And it is that conduct — in a prominent public forum — that reflects poorly on both of these  values- and character-based organizations.

What specifically do you think the lawyers did wrong and what do you think should be be done to be in the character of the Oath & Law?

Why does it not reflect poorly on the Scouting community that we sit here and criticize the lawyer's defending the BSA for simply doing their job?

 

Edited August 8, 2019 by ParkMan
grammer

[qwazse]

5 minutes ago, ParkMan said:

What specifically do you think the lawyers did wrong and what do you think should be be done to be in the character of the Oath & Law?

Why does it not reflect poorly on the Scouting community that we sit here and criticize the lawyer's defending the BSA for simply doing their job?

@ParkMan, I suspect most of discovery are straightforward documents that could tip the judge's opinion one of many ways, depending on how the opposition synthesizes them to make their case. Others are no doubt interviews with potential customers who were confused about branding.

In either case, by delaying discovery, the opposing side has less time time to figure out how each item may support or refute their arguments. From the court's perspective, however, such delays are an undo burden on clients and taxpayers.

They judge is sensing that these lawyers are just playing cat-and-mouse, and playing games with the law is not doing one's job.

[David CO]

BSA is a business.  Its sole purpose is to make money.  We should not be surprised when they behave this way.  

 

[dkurtenbach]

2 hours ago, ParkMan said:

What specifically do you think the lawyers did wrong and what do you think should be be done to be in the character of the Oath & Law?

Why does it not reflect poorly on the Scouting community that we sit here and criticize the lawyer's defending the BSA for simply doing their job?

 

@ParkMan, in answer to your first question, the judge explained what they did wrong:  "Discovery is intended to advance the merits, efficiently and economically. It is not intended to create a tortured maze to hinder the other side."  In the character of the Scout Oath and Law, the lawyers should comply with their obligations under the rules that govern litigation:  "The interrogatory and discovery demands of both sides are clearly relevant and proper, and should be answered, fully, promptly and responsively."

Your second question is premised on the notion that when they were engaged in their improper discovery tactics, they were "simply doing their job."  As @qwazse commented, and as the judge explained, they were not doing their jobs.  It does not reflect poorly on the Scouting community to highlight instances where people representing the Boy Scouts of America (and people representing the GSUSA) were in fact found to be acting inappropriately when carrying out that representation.    

[ParkMan]

31 minutes ago, dkurtenbach said:

@ParkMan, in answer to your first question, the judge explained what they did wrong:  "Discovery is intended to advance the merits, efficiently and economically. It is not intended to create a tortured maze to hinder the other side."  In the character of the Scout Oath and Law, the lawyers should comply with their obligations under the rules that govern litigation:  "The interrogatory and discovery demands of both sides are clearly relevant and proper, and should be answered, fully, promptly and responsively."

This hardly seems like improper behavior.  If the lawyers had hidden information or not properly disclosed what is required than that is improper.  But, stalling is simply a tactic.  Yes, the lawyers employed tactics to make it more difficult for the opposing side to make their case.  There was nothing illegal here as far as I can tell.  In sports, this is simply playing defense.   "The best offense is a good defense".  The judge finally had enough and told them to stop - so what?

Yes, the Oath & Law provides us guidance on how to conduct ourselves.  This line of thought suggests to follow the Oath and Law an athlete should not try play aggressive defense.  a business person should not try to take market share from a rival.  A solider should not take advantage of available means to defeat the other side.

53 minutes ago, dkurtenbach said:

Your second question is premised on the notion that when they were engaged in their improper discovery tactics, they were "simply doing their job."  As @qwazse commented, and as the judge explained, they were not doing their jobs.  It does not reflect poorly on the Scouting community to highlight instances where people representing the Boy Scouts of America (and people representing the GSUSA) were in fact found to be acting inappropriately when carrying out that representation.    

If there was true illegal or immoral activity here, then call them out.  But, the complaint here is akin to criticizing a basketball player for throwing an elbow in a game.

What Scouting purpose does it serve to look for fault here?

[dkurtenbach]

Well, as we would say in court, "Asked and answered."