Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1:04-cv—O1266—SLR Document 241 Filed O3/23/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT i
FOR THE DISTRICT OF DELAWARE
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Debtors ) Banker. Case No. 02-11518 (MFW)
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Plaintiffs, g
v. ) C.A. No. 04—CV—l266 (SLR)
BCE Inc., et al., i
Defendants. l
`````_-_ §»iB}I5E`E5`E§EE{E3`E`E§i·E§ri`i3`EEExEEEm OF STEPHEN GILLERS
For the reasons that follow, the Plaintiffs move to exclude the expert Declaration of
Stephen Gillers (D.I. 236):
1. The Defendants have attempted to submit new argument and new evidence on
their appeal from the Special Masters Final Decision (D.I. 213) in the fonn of an expert
declaration from law professor Stephen Gillers, which purports to tell this Coturt how it should
apply the law of attorney—client privilege. The Defendants’ attempt to supplement the record on
appeal not only runs afoul of applicable case law,l it directly contravenes the Court's explicit
instructions from the March 7, 2006 teleconference during which the Coun; ordered the
Defendants to base their appeal on the evidence considered by the Special Master. g 3/07/06 1
Tr. at 13-14 (D.I. 221).
2. In addition, the Defendants' decision to wait until the briefing was completed
E g Nilssen v. Motorola, Inc., C.A. No. 96-C—5571, 2002 WL 206007, at *11 (N.D. Ill. Feb. 8,
2002) (precluding party objecting to special master‘s decision from submitting new evidence); Robinson
v. Cent. Loan and Finance Corp., 609 F.2d 170, 174 (S"` Cir. 1980) (same). .
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Case 1:04-cv—O1266—SLR Document 241 Filed O3/23/2006 Page 2 of 3
before submitting the expert declaration —— giving the Plaintiffs no chance to respond —— is a clear
example of unconscionable "sandbagging." 2 This Court has not tolerated such unseemly tactics
in the past, and should deal with the Defendants' legal maneuvering in the same fashion.3
3. Finally, the Court should exclude the expert declaration because it impermissibly
attempts to usurp the function of the Court by rendering opinions on the interpretation of the law.
This Court has routinely struck expert opinions that seek to invade the province of the Court, and
even has gone so far to issue a standing order that prohibits expert legal opinions in patent cases}
The same result should occur here. 1
The expert declaration of Stephen Gillers should be excluded.
Gregory V. Varallo (No. 2242) l
[email protected]
C. Malcolm Cochran, TV (No. 2377)
[email protected]
Russell C. Silberglied (No. 3462)
[email protected]
Chad M. Shandler (N o. 3796) j
[email protected] g
Richards, Layton & Finger Z
One Rodney Square
Wilmington, Delaware 19899
(302) 651-7700
Dated: March 23, 2006 Attorneys for Teleglobe Comm. Corp., et al.
2 The Court should disregard any argument from the Defendants that the expert declaration was
submitted in response to the Plaintift`s‘ Motion to Affirm and Adopt the Special Masters Final Report. T
The only material reviewed by Mr. Gillers in rendering his opinion was the Special Master‘s Final Report L
(Di. 236 at ji 2), which aptly demonstrates that the declaration is intended to address the conclusions ;
reached in the Final Report.
3 Sgt; Watkins v. New Castle Courrg, 374 F. Supp. 2d 379, 394 (D. Del. 2005); g @ Rockwell Q
Tech., LLC v. Spectra-Physics Lasers, Inc., C.A. No. 00-589, 2002 WL 53l555, at *3 (D. Del. Mar. 26,
2002); Local Rule 7. 1 .3(c)(2).
4 g, gg., Watkins v. New Castle County, 374 F. Supp. 2d at 393 (holding that expert testimony E
which renders legal conclusions should be excluded); Hill v. Equitable Bank, Nat‘l Ass‘n, C.A. No. 82-
220, 1987 WL 8593, at *1-2 (D. Del. Mar. 3, 1987) (holding that expert testimony that renders opinions -
on the law "invade[s] the province ofthe Court").
2 Q
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Case 1:04-cv—O1266—SLR Document 241 Filed O3/23/2006 Page 3 of 3 ·
CERTIFICATE OF SERVICE I
I hereby certify that on March 23, 2006, I hand delivered and electronically filed the
foregoing document with the Clerk of Court using CM/ECF, which will send notification of such
tiling(s) to the following: I
Pauline K. Morgan, Esq. Joseph A. Rosenthal , Esq. j
YOUNG CONAWAY STARGATT & ROSENTHAL, MONHAIT, GROSS & ,
TAYLOR, LLP GODDESS, P.A. Q
The Brandywine Building 1401 Mellon Bank Center
1000 West Street, 17th Floor P.O. Box 1070
P.O. Box 391 Wilmington, DE 19801
Wilmington, DE 19899 ,
I hereby certify that on March 23, 2006, I have sent by Federal Express the foregoing
document to the following non—registered participants: ‘ ?
John Amato, Esq. George J. Wade, Esq. A
Hahn & Hessen LLP Daniel Schimmel, Esq. ¤
488 Madison Avenue SHEARMAN & STERLING LLP i
New York, NY 10022 599 Lexington Avenue ,
New York, NY 10022 E
{ MKQ/’7'_"
Chad M. Shandler (#3796) g
Shandler@rltYcom
Richards, Layton & Finger, P.A. A
One Rodney Square .
P.O. Box 551
Wilmington, Delaware 19899 j
(302) 651-7700 Q
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