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  • Writer's pictureShelly Albaum

The Forbidden Affidavits

In January, Baker Hostetler withdrew as counsel for Elysium in the California litigation, for reasons explained to Judge Carney in closed session, so we don't know why.

On February 4th, Baker Hostetler withdrew as counsel for Elysium in New York, for reasons explained in five sealed affidavits, filed in support of the motion to withdraw, and along with a motion to seal the sealed affidavits.

Ten days later, on February 14th, newly assigned Judge Lewis Liman denied Baker Hostetler's motion to seal the affidavits on the grounds that there was no attorney-client privileged information in the affidavits that would warrant their being sealed.

So I was excited to see what was in the affidavits, but the excitement was tempered in two ways. First, Judge Liman had kind-of telegraphed that there wasn't any confidential information there, and thus maybe nothing interesting at all. Second, two weeks later, despite the order denying the motion to seal, the affidavits still had not been unsealed.

So, because I am, as a blogger, by definition, more talk than action, I wrote a piece suggesting that somebody besides me should call the court and get the affidavits unsealed. Honestly, I thought that the attorneys on the case maybe read this blog, had routine court interactions, and would be interested in seeing the affidavits, and could get them unsealed easier than I could.

I was wrong about that, because ten more days passed without any action on the forbidden affidavits.

So I sucked it up and wrote to the Court asking that His Honor's order of February 14th be given effect, and Judge Liman promptly issued a new order directing the Court Clerk to unseal the improperly sealed affidavits:

Behold the power of the Fourth Estate, and thanks to Judge Liman for hearing out a legal journalist!

As a result of this order, the forbidden affidavits are no longer forbidden, and now you, too, can read the forbidden affidavits that explain why Baker Hostetler withdrew from its representation of Elysium.

Before actually reading the affidavits, we had three guesses: (1) Elysium wasn't paying its bills; (2) Elysium was insisting that Baker Hostetler do improper things; (3) Elysium was emotionally abusing Baker Hostetler for inadvertently producing text messages that revealed unflattering personal conduct by Elysium's executives.

After reading the affidavits, we still don't know, because there's nothing in them.

You can check it out yourself. Here are all five affidavits, basically identical. They key paragraph reads as follows:

"For reasons that can be explained in more detail if the Court would find it useful, an irreconcilable conflict has arisen in the attorney-client relationship between Elysium and Baker, and it has become clear that Baker cannot continue to represent Elysium in the above-captioned action."

The only other useful tidbit I see in the affidavits is this: "Pursuant to Local Rule 1.4, I state that Baker is not assessing a retaining or charging lien against Elysium." The absence of a charging lien does not quite disprove our #1 theory that Elysium was not paying its bills, although if that was the problem it would have been easy enough for B-H to just say it. But it is more likely now that B-H and Elysium had a disagreement about strategy or that Elysium was not willing to be represented by a firm that had improperly revealed unflattering personal conduct information.

It might be the case that Elysium also withheld payment because they were unsatisfied with B-H's document production services, and B-H wrote it off rather than deal with a malpractice claim. We'll probably never know.

But one thing we DO know is that Baker Hostetler attorney Joe Sacca in his letter motion to the Judge told the Court that the affidavit included information relating to "aspects of the attorney-client relationship appropriate for filing ex parte and sealing."

The Judge found that the affidavits "do not contain any particulars of the reason for the withdrawal such that their disclosure would fail to preserve the confidentiality of the attorney-client relationship." I don't see anything like that, either. And I suspect neither does anyone.

It is SO appropriate that, in their final act in this litigation on behalf of Elysium, Baker Hostetler would say something untrue in a court filing and waste a bunch of people's time, for no apparent reason.

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