Elon Musk's Attorney Responds To Sanctions Motion Over Messy Deposition
These actions may not be sanctionable, but nothing about this is helping Musk's case.
Elon Musk trumpeted conspiracy nut Tweets suggesting that a random college grad was a government agent running a false flag operation to, I guess, give neo-Nazis a bad name. Since this false claim managed to throw Ben Brody into the crosshairs of the far-right mob, he’s understandably ticked off that the world’s richest red pill connoisseur blasted it all over his global platform. He’s sued Musk in Texas and Musk sat for a deposition, taken by Brody’s attorney Mark Bankston, that turned out… very badly for the billionaire.
But it went even worse for Musk’s attorney, Quinn Emanuel’s Alex Spiro, who earned a sanctions motion out of the deal. And, perhaps even worse than the risk of sanctions, he came across really bad on the transcript — even before he closed it by asking to seal the transcript seemingly without realizing that he needed to make that motion before Musk dropped a slew of critical admissions.
Quinn Emanuel filed its response to avoid sanctions late last week. Befitting Musk’s penchant for “hardcore” litigation, the motion spends time on offense as well as defense, culminating in an oh yeah, well, we think YOU should pay our legal fees cross-motion.
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First off, you’re probably wondering what the brief has to say about signing filings despite not being admitted pro hac vice? Well… not much.
…a Texas-admitted attorney appeared on the signature block of the motion to dismiss, filed the motion electronically under his name, and signed the certificate of service….
Not sure even Quinn Emanuel buys that defense, which is probably why the firm filed a motion proposing the court fire up the TARDIS and just pretend the motion to dismiss had been signed by a Texas attorney all along. That’s not a motion you make if you’re convinced that using a Texas attorney’s ECF login cured the issue.
The sanctions response, actually signed by Texas-admitted partner John Bash this time, begins by calling out the plaintiff’s team’s brief for lacking the required certification that the parties meet and confer before the filing of the motion. Maybe they should all go to lunch.
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Nor could Plaintiff’s attorney reasonably make that representation to the Court. He made no real effort to resolve or narrow the issues. The attorney contacted defense counsel on a Friday afternoon seeking a meet-and-confer about a “sanctions motion” at 10:30 a.m. the following Monday. Delgado Decl. ¶ 3. Defendant’s counsel requested that Plaintiff’s attorney identify the basis for the motion in advance of the conference, but Plaintiff’s attorney did not respond. Id. When asked during the conference why he did not provide advance notice of the grounds for the motion, Plaintiff’s attorney responded that he did not work over weekends. Id. at. ¶ 4. At no point during the meet-and-confer did Plaintiff’s attorney endeavor to find a compromise short of a sanctions motion, such as soliciting answers to written questions that Defendant was instructed not to answer or reopening the deposition. Id. ¶ 2. The meet-and-confer lasted 30 minutes before Plaintiff’s attorney declared it concluded. Id. Within minutes thereafter, Plaintiff’s attorney filed his motion for sanctions, which apparently he had ready to file before the meet-and-confer took place, notwithstanding his statement that he “does not work weekends.” Id. ¶ 4.
So… Bankston did meet and confer? That seems like a problem for the response. Musk’s team claims this meeting wasn’t in good faith because Bankston did not “endeavor to find” certain potential compromises, but pointedly DOES NOT SAY in the text that Quinn Emanuel offered those options only to be rebuffed. It seems as though that would make for a much better response to the sanctions motion.
And they’re throwing shade over a Texas attorney not working on the weekend? I’m sure that’ll go over well with the judge that Bankston already felt would be a favorable audience for a “these big city slicker lawyers need to be stopped” frame.
The fact that Bankston immediately filed the motion afterward isn’t evidence that he misled Quinn about working weekends… it meant he finished the draft motion that would frame the conference before it started like every lawyer ever.
As for defending the deposition without a pro hac admission, Spiro cites precedent allowing out-of-state counsel to defend depositions while their admission is pending. Which makes sense, especially in a case where the attorney has been temporarily admitted in Texas in the past — like Spiro has. Which should have been the entirety of the argument.
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Instead…
At no point during the deposition did Plaintiff’s attorney ever object to Mr. Spiro attending the deposition to assert objections on the witness’s behalf on the ground that the Court had not yet ruled upon the pro hac vice motion that Mr. Spiro had filed in January. Although at two points he seemed to wield the pendency of Mr. Spiro’s pro hac vice motion as a kind of playground insult (“you’re not even pro hac in this case”; “you’re not even pro hac admitted,” Ex. K at 7:17, 11:11), Plaintiff’s attorney did not actually object to Mr. Spiro’s attendance.
Wait, what? He did not object except for those times that he said “you’re not even pro hac admitted” on the record? That… sure sounds like he was objecting. Even if it wasn’t a phrased as, “I hereby and forthwith object…” it’s hard to suggest that this motion wasn’t predictable after the plaintiff’s lawyer says that.
But, as our initial post explained, the problem wasn’t so much merely defending the deposition, as it was the string of Texas law shortcomings that Bankston kept putting on the record that local counsel could have either avoided or been equipped to address on the record at the time. The response brief keeps coming back to the idea that Bankston asked questions that exceeded the discovery order, which might be true, but the sanctions argument is that there’s a proper form for objecting to those that a Texas lawyer would know and Spiro not only didn’t allegedly employ that method, but said on the record that he “didn’t care” about the rule.
That still may not be a sanctionable problem. Sanctions are serious and even if there’s an explicit rule breach, there are plenty of arguments why that doesn’t rise to the level of punishing a lawyer — particularly when the proposed punishment involves robbing a client of their chosen counsel. But it’s still a problem for Musk to the extent this alleged behavior is the basis of this spotlight shining directly upon Musk’s disastrous deposition.
Which might be why the sprawling brief’s introduction includes two pages of single-spaced bullet points striving to explain why Musk’s embarrassing testimony wasn’t really all that embarrassing despite absolutely none of this having anything to do with whether or not his lawyer did anything sanctionable.
That might make Musk feel better. Judges… well, they tend to be a less excited when briefing goes off on unrelated tangents. Hopefully this doesn’t blow up in Musk’s face — like, say, his cars or spaceships.
(Response is available on the next page.)
Earlier: Is Elon Musk About To Get Quinn Emanuel Sanctioned?
Quinn Emanuel Proposes Using Time Travel To Avoid Sanctions Motion In Elon Musk Case
Joe 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.
