Commercial Division Blog

Posted: March 24, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Sanctions

Lawyer’s “Good Faith” Judgment Call Invalid Defense to Violating Court Order

In a Decision and Order, dated January 17, 2023, in Silverstein v. Borukhin, Index No. 650418/2021, Justice Jennifer Schecter of the New York County Commercial Division ordered plaintiff’s counsel to pay sanctions for advising his expert that it was acceptable to photograph source code for use in his report without first seeking or obtaining defendants’ consent or court approval as required.  The Court explained: 

By order dated June 22, 2022, the court directed that plaintiff's review of defendants' source code would be governed by the "Delaware Default Standard" (Dkt. 31 [the June 22 Order]), which provides that "source code may not be printed or copied without the agreement of the producing party or further order of the court" (Dkt. 53 at 1 [emphasis added]). . . .

While plaintiff proffers good cause as to why his expert had a legitimate need to copy source code for use in his report--and the court therefore will not preclude the report as that would be far too draconian of a sanction under the circumstances of this case--there was absolutely no excuse for doing so without prior court approval. Absent far more extreme circumstances (e.g., where compliance could result in serious physical harm), an attorney has no right to make a judgment call that violating a court order is justified. Rather, if, as here, there is merit in the attorney's position that relief from a court order is warranted (and particularly where, as here, the order itself provides that such relief must be sought), prior court approval is required. Among other reasons, not least of which is the integrity of court orders, opposing counsel should be given an opportunity to respond, especially when the issue involves something as sensitive as trade secrets. The notion that the court could not have expeditiously addressed the issue and ensured that the expert could have had the ability to finish his work is simply wrong (Dkt. 60 at 6; see Part Rule 21).

Thus, under these circumstances, the court finds that a sanction against plaintiff's counsel is warranted (see Dkt. 60 at 7 ["It was admittedly a judgment call on my part"]). While professing that his judgment was made in "good faith" is not a valid defense to an express violation of a court order, given the totality of the circumstances, the court is satisfied that a modest sanction and this reprimand should suffice to ensure this never happens again.

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