In W.L. Gore & Associates Inc. v. C.R. Bard, Inc., C.A. No. 11-515-LPS (D. Del. Feb. 8, 2017), Chief Judge Stark granted in part the defendants’ motion for attorneys’ fees incurred in responding to the plaintiff’s motion for sanctions under 28 U.S.C. § 1927. The plaintiff filed the motion for sanctions after, on the morning of the first day of jury trial, the defendants represented to the Court that important documents from the plaintiff’s state tax proceedings were discovered and were relevant to the plaintiff’s claims for lost profits damages and secondary considerations of non-obviousness. After the Court continued the trial for additional discovery, the plaintiff brought its motion for sanctions, arguing that the defendants had made misrepresentations to the Court regarding the documents at issue. Judge Stark denied the motion for sanctions.
On the motion for fees, Judge Stark recognized that the defense counsel’s use of the documents at issue six years earlier might “initially” have given the plaintiff’s counsel pause; however, a review of the defendants’ unrebutted attorney declarations explaining the circumstances should have led the plaintiff’s counsel to withdraw the motion for sanctions. Additionally, the Court was persuaded that the documents at issue were the plaintiff’s documents and the plaintiff had failed to produce them in the litigation, contradicting the assertion that the defense counsel had purposely failed to raise their existence in the litigation. Accordingly, Chief Judge Stark awarded reasonable attorneys’ fees to the defendants for the fees incurred after the filing of their brief in opposition to the plaintiff’s motion for sanctions.
Key Points: The Court takes motions for sanctions very seriously and the failure of a party to withdraw such a motion when faced with new evidence may itself give rise to fee shifting.