LML Holdings, Inc. v. Pacific Coast Distributing Inc. et al

Filing 146

ORDER OF SANCTIONS FOLLOWING SHOW CAUSE HEARING by Judge Yvonne Gonzalez Rogers granting in part and denying in part 137 Motion to Strike ; denying as Moot 138 Stipulation. The July 9, 2013 hearing on Defendants' Motion to Strike is VACATED. (Attachments: # 1 Exhibit A) (fs, COURT STAFF) (Filed on 6/21/2013)

CODE OF PROFESSIONAL CONDUCT
PREAMBLE
This Code of Professional Conduct is adopted to apply to all lawyers, including all inhouse counsel, who have entered an appearance in this matter. As lawyers, we owe a duty of
professionalism to our clients, opposing parties and their counsel, the courts and other tribunals,
and the public as a whole. Those duties include among others: civility, professional integrity,
personal dignity, candor, diligence, respect, courtesy, cooperation and competence.
This Code is structured to provide a general guiding principle in each area addressed
followed by specific examples which are not intended to be all encompassing. Every attorney
that enters an appearance in this matter shall be deemed to have pledged to adhere to the Code.
Counsel are encouraged to comply with both the spirit and letter of this Code. Nothing in this
Code, however, shall be interpreted to contradict or supersede any Order of the Court or
agreement between the parties.
This Code should be read in the context of the Federal Rules of Civil Procedure, the
Local Rules of the United States District Court for the Northern District of California (including,
specifically, Civil Local Rule 11-4), the standards of professional conduct required of members
of the State Bar of California, and each counsel’s underlying duty to zealously represent
his/her/its client. Nothing in this Code should be read to denigrate counsel’s duty of zealous
representation. However, counsel are encouraged to zealously represent their clients within
highest bounds of professionalism. The legal profession must strive for the highest standards of
attorney behavior to elevate and enhance our service to justice.

1.

1. Responsibilities to the Public
A lawyer should always be mindful that the law is a learned profession and that among its
goals are devotion to public service, improvement of the administration of justice, and the
contribution of uncompensated time and civic influence on behalf of persons who cannot afford
adequate legal assistance.
2. Responsibilities to the Client
A lawyer should work to achieve his or her client’s lawful and meritorious objectives
expeditiously and as economically as possible in a civil and professional manner.
For example:
a.

A lawyer should be committed to his or her client’s cause, but should not permit

that loyalty to interfere with giving the client objective and independent advice.
b.

A lawyer should advise his or her client against pursuing positions in litigation (or

any other course of action) that do not have merit.
3. Scheduling
A lawyer should understand and advise his or her client that civility and courtesy in
scheduling meetings, hearings, and discovery are expected as professional conduct.
For example:
a.

A lawyer should make reasonable efforts to schedule meetings, hearings, and

discovery by agreement whenever possible and should consider the scheduling interests of
opposing counsel, the parties, witnesses, and the court. Misunderstandings should be avoided by
sending formal notice after agreement is reached.
b.

A lawyer should not arbitrarily or unreasonably withhold consent to a request for

scheduling accommodations.
c.

A lawyer should not engage in delay tactics in scheduling meetings, hearings, or

discovery.
d.

A lawyer should try to verify the availability of key participants and witnesses

before a meeting, hearing, or trial date is set. If that is not feasible, a lawyer should try to do so
2.

immediately after the meeting, hearing, or trial date is set so that he or she can promptly notify
the court and opposing counsel of any likely problems.
e.

A lawyer should (i) notify opposing counsel and, if appropriate, the court as early as

possible when scheduled meetings, hearings, or depositions must be cancelled or rescheduled,
and (ii) provide alternate dates for such meetings, hearings, or depositions when possible.
4. Continuances and Extensions of Time
Consistent with existing law and court orders, a lawyer should agree to reasonable
requests for extensions of time when the legitimate interests of his or her client will not be
adversely affected.
For example:
a.

A lawyer should agree to reasonable requests for extensions of time or continuances

without requiring motions or other formalities.
b.

Unless time is of the essence, a lawyer should agree as a matter of courtesy to first

requests for reasonable extensions of time, even if the requesting counsel previously refused to
grant an extension.
c.

After agreeing to a first extension of time, a lawyer should consider any additional

requests for extensions of time by balancing the need for prompt resolution of matters against (i)
the consideration that should be extended to an opponent’s professional and personal schedule,
(ii) the opponent’s willingness to grant reciprocal extensions, (iii) the time actually needed for
the task, and (iv) whether it is likely that a court would grant the extension if asked to do so.
d.

A lawyer should be committed to the notion that the strategy of refusing reasonable

requests for extensions of time is inappropriate, and should advise clients of the same.
e.

A lawyer should not seek extensions or continuances for the purpose of harassment

or extending litigation.
f.

A lawyer should not condition an agreement to an extension of time on unfair or

extraneous terms, except those a lawyer is entitled to impose, such as (i) preserving rights that
could be jeopardized by an extension of time or (ii) seeking reciprocal scheduling concessions.
3.

g.

By agreeing to extensions, a lawyer should not seek to cut off an opponent’s

substantive rights, such as his or her right to move against a complaint.
h.

A lawyer should agree to reasonable requests for extensions of time when new

counsel is substituted for prior counsel.
5. Service of Papers
The timing and manner of service of papers should not be calculated to disadvantage or
embarrass the party receiving the papers.
For example:
a.

A lawyer should not serve documents, pleadings, or motions on the opposing party

or counsel at a time or in a way that would unfairly limit the other party’s opportunity to
respond.
b.

A lawyer should not serve papers so soon before a court appearance that it inhibits

the ability of opposing counsel to prepare for that appearance or to respond to the papers if
permitted by law.
c.

A lawyer should not serve papers (i) simply to take advantage of an opponent’s

known absence from the office, or (ii) at a time or in a manner designed to inconvenience an
opponent.
d.

A lawyer should serve papers by personal delivery, facsimile transmission, or email

when it is likely that service by mail, even when allowed, will prejudice the opposing party.
e.

A lawyer should serve papers on the individual lawyer known to be responsible for

the matter at issue and should do so at his or her principal place of business.
f.

A lawyer should never use the mode, timing, or place of serving papers primarily to

embarrass a party or witness.
6. Punctuality
A lawyer should be punctual in communications with others and in honoring scheduled
appearances.
For example:
4.

a.

A lawyer should arrive sufficiently in advance of trials, hearings, meetings,

depositions, or other scheduled events so that preliminary matters can be resolved.
b.

A lawyer should promptly notify all other participants when the lawyer will be

unavoidably late.
c.

A lawyer should promptly notify the other participants when he or she is aware that

a participant will be late for a scheduled event.
7. Writings Submitted to the Court
Written materials submitted to the court should always be factual and concise, accurately
state current law, and fairly represent the parties’ positions without unfairly attacking the
opposing party or opposing counsel.
For example:
a.

Facts that are not properly introduced as part of the record in the case should not be

used in written briefs or memoranda of points and authorities.
b.

A lawyer should avoid denigrating the intelligence, ethics, morals, integrity, or

personal behavior of the opposing party, counsel, or witness, unless such matters are at issue in
the proceeding.
8. Communications with Opponents or Adversaries
A lawyer should at all times be civil, courteous, and accurate in communicating with
opponents or adversaries, whether in writing or orally.
For example:
a.

A lawyer should not draft letters (i) assigning a position to an opposing party that

the opposing party has not taken, or (ii) to create a “record” of events that have not occurred.
b.

A lawyer should not copy the court on any letter between counsel unless

permitted or invited by the court.

5.

9. Discovery
A lawyer should conduct discovery in a manner designed to ensure the timely, efficient,
cost effective and just resolution of a dispute.
When propounding or responding to written discovery or when scheduling or completing
depositions, a lawyer should be mindful of geographic or related timing limitations of parties and
nonparties, as well as any relevant language barriers, and should not seek to use such limitations
or language barriers for an unfair advantage.
A lawyer should promptly and completely comply with all discovery requirements of the
Federal Rules of Civil Procedure.
For example:
a) As to Depositions:
(1)

A lawyer should take depositions only (a) where actually needed to learn facts or

information, or (b) to preserve testimony.
(2)

In scheduling depositions, a lawyer shall follow the requirements of Civil Local

Rule 30-1, should be cooperative in noticing depositions at mutually agreeable times and
locations and shall accommodate the schedules and geographic limitations of opposing counsel
and the deponent where it is possible to do so, while also considering the scheduling
requirements in the litigation.
(3)

A lawyer representing a deponent that requires translator services or other special

requirements shall promptly advise the noticing party of such requirements sufficiently in
advance of a scheduled deposition so that counsel may seek to reasonably accommodate the
deponent. A lawyer should be respectful of any translation or other special requirements that a
particular deponent might have and should not seek to take unfair advantage of such
requirements during a deposition.
(4)

When a deposition is scheduled and noticed by another party for the reasonably

near future, a lawyer should ordinarily not schedule another deposition for an earlier date without
the agreement of opposing counsel.
6.

(5)

A lawyer should only delay a deposition if necessary to address legitimate

scheduling conflicts. A lawyer should not delay a deposition for bad faith purposes.
(6)

A lawyer should not ask questions about a deponent’s personal affairs or question a

deponent’s integrity where such questions are irrelevant to the subject matter of the deposition.
(7)

A lawyer should avoid repetitive or argumentative questions or those asked solely

for purposes of harassment.
(8)

A lawyer representing a deponent or another party should limit objections to those

that are well founded and necessary for the protection of his or her client’s interest. A lawyer
should remember that most objections are preserved and need be made only when the form of a
question is defective or privileged information is sought.
(9)

Once a question is asked, a lawyer should not coach the deponent or suggest

answers, whether through objections or other means.
(10) A lawyer should not direct a deponent to refuse to answer a question unless the
question seeks privileged information, is manifestly irrelevant, or is calculated to harass.
(11) A lawyer should refrain from self-serving speeches during depositions.
(12) A lawyer should not engage in any conduct during a deposition that would not be
allowed in the presence of a judicial officer.
b) As to Requests for Production of Documents:
(1)

A lawyer should limit requests for production of documents to cover only those

documents that are actually and reasonably believed to be needed for the prosecution or defense
of an action. Requests for production of documents should not be made to harass or embarrass a
party or witness, or to impose an inordinate burden or expense on the responding party.
(2)

A lawyer should not draft requests for production of documents so broadly that they

encompass documents that are clearly not relevant to the subject matter of the case.
(3)

In responding to requests for production of documents, a lawyer should not interpret

the requests in an artificially restrictive manner in an attempt to avoid disclosure.

7.

(4)

A lawyer responding to requests for production of documents should withhold

documents on the grounds of privilege only where appropriate.
(5)

A lawyer should not produce documents in a disorganized or unintelligible fashion,

or in a manner calculated to hide or obscure the existence of particular documents.
(6)

A lawyer should not delay producing documents to prevent opposing counsel from

inspecting documents prior to scheduled depositions or for any other tactical reason.
c) As to Interrogatories:
(1)

A lawyer should use interrogatories sparingly and never use interrogatories to

harass or impose undue burden or expense on the responding party.
(2)

A lawyer should not read or respond to interrogatories in a manner designed to

ensure that responses are not truly responsive.
(3)

A lawyer should not object to interrogatories unless he or she has a good faith belief

in the merit of the objection. Objections should not be made for the purpose of withholding
relevant information. If an interrogatory is objectionable only in part, a lawyer should answer
the unobjectionable portion.
10. Motion Practice
Motions should be filed or opposed only in good faith and when the issue cannot be
otherwise resolved.
For example:
a.

Before filing a motion, a lawyer should engage in a good faith effort to resolve the

issue. In particular, civil discovery motions should be filed sparingly.
b.

A lawyer should not engage in conduct that forces opposing counsel to file a motion

that he or she does not intend to oppose.
c.

In complying with any meet and confer requirement in the Federal Rules of Civil

Procedure or other applicable rules, a lawyer should speak personally with opposing counsel or a
self-represented party and engage in a good faith effort to resolve or informally limit all
applicable issues.
8.

d.

Where rules permit an ex parte application or communication to the court in an

emergency situation, a lawyer should make such an application or communication only where
there is a bona fide emergency—i.e., when the lawyer’s client will be seriously prejudiced if the
application or communication were made with regular notice.

This applies, inter alia, to

applications to shorten an otherwise applicable time period.
11. Dealing with Nonparty Witnesses
It is important to promote high regard for the legal profession and the judicial system
among those who are neither lawyers nor litigants. A lawyer’s conduct in dealings with nonparty
witnesses should exhibit the highest standards of civility and be designed to leave the witness
with an appropriately good impression of the legal profession and the judicial system.
For example:
a.

A lawyer should be courteous and respectful in communications with nonparty

witnesses.
b.

Upon request, a lawyer should extend professional courtesies and grant reasonable

accommodations, unless doing so would materially prejudice his or her client’s lawful
objectives.
c.

A lawyer should take special care to protect a witness from undue harassment or

embarrassment and to state questions in a form that is appropriate to the witness’s age and
development.
d.

A lawyer should not issue a subpoena to a nonparty witness for inappropriate

tactical or strategic purposes, such as to intimidate or harass the nonparty.
e.

As soon as a lawyer knows that a previously scheduled deposition will or will not

go forward as scheduled, the lawyer should notify all applicable counsel.
f.

A lawyer who obtains a document pursuant to a deposition subpoena should, upon

request, make copies of the document available to all other counsel at their expense even if the
deposition is canceled or adjourned.

9.

12. Ex Parte Communications with the Court
A lawyer should not communicate ex parte with a judicial officer or his or her staff on a
case pending before the court, unless permitted by law or Local Court Rule.
For example:
a.

Even where applicable laws or rules permit an ex parte application or

communication to the court, a lawyer should make diligent efforts to notify the opposing party or
a lawyer known to represent or likely to represent the opposing party before making such an
application or communication. A lawyer should make reasonable efforts to accommodate the
schedule of an opposing party or his or her counsel to permit them to participate in the ex parte
proceedings.
13. Settlement and Alternative Dispute Resolution
A lawyer should raise and explore the issue of settlement and alternative dispute
resolution in every case as soon as the case can be evaluated.
For example:
a.

A lawyer should always attempt to de-escalate any controversy and bring the parties

together.
b.

A lawyer should not falsely hold out the possibility of settlement as a means for

terminating discovery or delaying trial. In every case, a lawyer should consider whether his or
her client’s interest could be adequately served and the controversy more expeditiously and
economically disposed of by arbitration, mediation, or other form of alternative dispute
resolution.
c.

A lawyer should advise his or her client at the outset of the availability of

alternative dispute resolution.
d.

A lawyer involved in an alternative dispute resolution process should participate in

good faith, and should not use the process for purposes of delay or other improper purposes.

10.

14. Trial and Hearings
A lawyer should conduct himself or herself in trial and hearings in a manner that
promotes a positive image of the legal profession, assists the court in properly reviewing the
case, and displays appropriate respect for the judicial system.
For example:
a.

A lawyer should be punctual and prepared for all court appearances.

b.

A lawyer should always deal with parties, counsel, witnesses, jurors or prospective

jurors, court personnel, and the judge with courtesy and civility.
c.

A lawyer should only make objections during a trial or hearing for legitimate and

good faith reasons.

A lawyer should not make such objections only for the purpose of

harassment or delay.
d.

A lawyer should honor requests made by opposing counsel during trial that do not

prejudice his or her client’s rights or sacrifice a tactical advantage.
e.

While appearing before the court, a lawyer should address all arguments,

objections, and requests to the court, rather than addressing them directly to opposing counsel.
f.

While appearing in court, a lawyer should demonstrate sensitivity to any party,

witness, or other lawyer who has requested, or may need, accommodation as a person with
physical or mental impairment. This will help foster full and fair access to the court for all
persons.
15. Default
A lawyer should not seek an opposing party’s default to obtain a judgment or substantive
order without giving that opposing party sufficient advance written warning to allow the
opposing party to cure the default.
16. Social Relationships with Judicial Officers or Court Appointed Experts
A lawyer should avoid even the appearance of impropriety or bias in relationships with
judicial officers, arbitrators, mediators, and independent court appointed experts.
For example:
11.

a.

When a lawyer is assigned to appear before a judicial officer with whom the lawyer

has a social relationship or friendship beyond normal professional association, the lawyer should
notify opposing counsel (or a self-represented party) of the relationship.
b.

A lawyer should disclose to opposing counsel (or a self-represented opposing party)

any social relationship or friendship between the lawyer and an arbitrator, mediator, or any
independent court appointed expert taking a role in the case, so that the opposing counsel or
party has the opportunity to object to such arbitrator, mediator, or expert receiving the
assignment.
17. Privacy
All matters should be handled with due respect for the privacy rights of parties and nonparties.
For example:
a.

A lawyer should not inquire into, nor attempt to use, nor threaten to use, facts about

the private lives of any party or other individuals for the purpose of gaining an unfair advantage
in a case. This rule does not preclude inquiry into sensitive matters that are relevant to a
legitimate issue, as long as the inquiry is pursued as narrowly as is reasonably possible and with
due respect for the fact that an invasion into private matters is a necessary evil.
b.

If it is necessary for a lawyer to inquire into such matters, the lawyer should

cooperate in arranging for protective measures designed to ensure that the private information is
disclosed only to those persons who need to present it as relevant evidence to the court.
18. Communication About the Legal System and With Participants
Lawyers should conduct themselves with clients, opposing counsel, parties and the public
in a manner consistent with the high respect and esteem which lawyers should have for the
courts, the civil and criminal justice systems, the legal profession and other lawyers.
For example:
a.

A lawyer’s public communications should at all times and under all circumstances

reflect appropriate civility, professional integrity, personal dignity, and respect for the legal
12.

system. This rule does not prohibit good faith, factually based expressions of dissent or criticism
made by a lawyer in public or private discussions having a purpose to motivate improvements in
our legal system or profession.
b.

A lawyer should not make statements which are false, misleading, or which

exaggerate, for example, the amount of damages sought in a lawsuit, actual or potential
recoveries in settlement or the lawyer’s qualifications, experience or fees.
c.

A lawyer should not create a false or misleading record of events or attribute to an

opposing counsel a position not taken.
d.

A lawyer should not fail or refuse without justification to respond promptly by

returning phone calls or otherwise responding to calls and letters of his or her clients, opposing
counsel and/or self-represented parties.
e.

A lawyer who is serving as a prosecutor or defense counsel should conduct

himself or herself publicly and within the context of a particular case in a manner that shows
respect for the important functions that each plays within the criminal justice system, keeping in
mind that the defense of an accused is important and valuable to society as is the prosecution.
f.

A lawyer should refrain from engaging in conduct that exhibits or is intended to

appeal or engender bias against a person on account of that person’s race, color, religion, sex,
national origin, sexual orientation, or disability, whether that bias is directed to other counsel,
court personnel, witnesses, parties, jurors, judges, judicial officers or any other participants.
19. Redlining
A lawyer should clearly identify for other counsel or parties all changes that a lawyer
makes in documents.

13.