Judge Garaufis v. Kirkland & Ellis And Facebook: The Transcript
There are some fun tidbits in this transcript.
Judge Nicholas Garaufis (E.D.N.Y.)
The big Biglaw story of this week: the benchslap that Judge Nicholas Garaufis (E.D.N.Y.) doled out to Kirkland & Ellis, and its aftermath. To recap: last week, Judge Garaufis harshly reprimanded a K&E associate over the fact that the firm didn’t send a partner to cover the initial status conference in a case before him (a lawsuit accusing Facebook of facilitating terrorism through its social-media platform). The judge got some criticism for this move. On Tuesday, Kirkland and Facebook sent a huge team to Judge Garaufis’s court and apologized; Judge Garaufis apologized back, and everyone was “friends” again.
For those of you who can’t get enough of this story, there’s more: we now have the complete transcript of the Tuesday proceeding. We’ll pull out and discuss some highlights, but feel free to read the full document on the next page (gavel bang: @EricGoldman).
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Judge Garaufis actually apologizes first, right after the appearances of counsel:
I am glad to see you all here. Let me just say that. Any inference that might have been achieved through the media that I was ever upset at Mr. Burcher [K&E associate Aulden Burcher-DuPont] is totally unfounded and for that, I apologize if that is the impression that was given. I was much more concerned about the fact that the firm, your firm, would take this matter seriously on behalf of Facebook and I expected that either Ms. Barday or, if she couldn’t make it, someone would call and we would reschedule it because I believe that we ought to have the face of the firm, so to speak, in a situation like this.
It is only a pre-motion conference. I understand that, but any time the Court makes itself available, the Court may want to discuss things that aren’t on your minds but on the Court’s mind. So I just wanted to point that out to you and, hopefully, you know, we’ve crossed that bridge.
I don’t think it was the fault of “the media” that some people drew the “inference” that Judge Garaufis was pissed. The transcript speaks for itself.
And this doesn’t change the fact that associates who are duly admitted to a court should be able to fully address matters “on the court’s mind” (assuming no objection from the client). But still, it was nice of the judge to hold out this olive branch.
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Kirkland & Ellis partner Craig Primis responds in kind:
We hear you loud and clear. We apologize as well and we appreciate the Court’s comments. I want you to know that we feel badly that we didn’t have a partner here and, like Your Honor said, we would be happy to put this behind us.
I do want to mention one other thing. In light of the Court’s comments, we do have in the courtroom a representative from Facebook. His name is Paul Grewal. He is the vice president and deputy general counsel for global litigation. He flew out here from California in case the Court had any questions along the lines that came up last week and I would also note that Mr. Grewal is a former United States Magistrate Judge.
(A magistrate judge who was a champion of associates speaking in court, by the way.)
Then we get an odd comment from Judge Garaufis about the career paths of his ex-clerks:
I don’t have any former clerks at Facebook. I have them at Google. I have them at Apple. For some reason, they have never made it over to Facebook and just don’t hold it against job applicants too that I took issue.
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Not sure what the judge is trying to say here — a humblebrag about the career successes of his former clerks? — but anyway….
After some discussion of procedural history, the key issues in the case (or cases — two related cases), and the parties’ current intentions — Facebook will move to dismiss, which plaintiff’s counsel, Robert Tolchin, will oppose — Judge Garaufis got to this funny quip (emphasis added):
THE COURT: …. [T]he statute, the Communications Decency Act, does that cover developers of these algorithms that would bring together these different people or groups with these mutual interests?
MR. PRIMIS: Your Honor, you’re looking at Mr. Grewal. I’m happy to answer that question.
THE COURT: Well, he came all the way from California, he’s making the airlines rich, so I think it’s time for him to help the Court.
A humorous comment, given how Facebook — with an assist from the previously irate Judge Garaufis — is also making Kirkland rich. With three Kirkland partners and a Kirkland associate in court, Facebook’s meter must have been running at more than $3,000 an hour (assuming the firm didn’t cut Facebook a break on fees to the extent that the snafu was K&E’s “fault”).
But when a federal judge gets angry, he must be placated.
(Flip to the next page to read the full transcript.)
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David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].
