UPDATE: The first hearing in Berenson v Biden has been postponed
The judge wants to decide first on whether to let us subpoena Twitter, and she's asked for briefs on the issue. This is (probably) a slight win for us. And a loss for the clever lawyers at Davis Polk.
About that hearing Thursday…
Not long after I hit send on “L’etat, c’est Pfizer” (yesterday’s article about Berenson v Biden), federal Judge Jessica G.L. Clarke canceled our court date.
Why? The backstory here is worth the trouble; bear with me.
We have agreed not to start the discovery process on the defendants in Berenson v Biden until Judge Clarke rules on their motions to dismiss our case. Such agreements are standard in federal civil suits. The defendants would ask the judge to stay discovery if we served it on them.
But this deal does not apply to Twitter (aka X) or Twitter’s former lawyers at Cooley. A month ago, we issued what are called third-party subpoenas to them, demanding they turn over documents relevant to the suit.
(Fighting for the truth. Pfighting Pfizer. With your help.)
The defendants don’t like these subpoenas. Especially the Pfizer defendants - Drs. Albert Bourla and Scott Gottlieb. They want all discovery stayed until after Judge Clarke decides if the case should move ahead.
Obviously, we disagree. So about two weeks ago, Bourla and Gottlieb’s attorneys at Davis Polk agreed with James Lawrence, my lead lawyer, to send a joint letter to Judge Clarke outlining our respective positions.
Such a letter is also standard.
Then things got… interesting.
Federal litigation is highly structured. The Federal Rules of Civil Procedure detail what litigants are allowed to do, and when and how they’re allowed to do them.
This letter was supposed to run five pages, two-and-a-half for each side. Even steven! James Lawrence, who is incredibly honest, wrote exactly two-and-a-half pages in 12-point font outlining our position - about 1250 words. He sent it to the lawyers at Davis Polk. Because they’re objecting to our request, the letter comes from them; they state their position first and attach ours second.
Bourla and Gottlieb’s lawyers then played a cute trick.
A very cute trick.
They shrank James’s letter. They didn’t cut or alter it (they’re too clever for that), they simply reformatted it in smaller font. In general, the federal rules require court briefs to be filed in 12-point font, but letters are at the judge’s discretion, and Judge Clarke does not have rules specifying letter font size.
Presto, James’s letter was suddenly only two pages long. Now the Davis Polk lawyers had almost three pages for their letter!
And they used them. James had stuck to arguing narrowly that our subpoenas were tightly tailored and pointing to precedents in the Second Circuit supporting third-party subpoenas - you know, the issues at hand.
But the defense used its extra space to reargue the whole case (and throw in insults at me). They even added some footnotes too. In all, their letter ran about 1,800 words.
Poker players will tell you: bluffing is part of the game, cheating will get you banned (or shot).
But between bluffing and cheating, there’s “angle shooting.” An angle shooter looks for every possible edge. He’ll pretend to begin to fold while watching your reaction or act out of turn to get extra information. He never quite breaks the rules, but he gets as close to the edge as he can.
You have to watch angle shooters very carefully.
What Davis Polk did with its letter was classic angle shooting, getting an extra bite at the apple to offer a punchy summary of their arguments. But James had signed off on the letter before Davis Polk sent it in, and Judge Clarke’s rules didn’t specify what font the letter had to be. Complaining would just make us seem whiny.
We were stuck.
Now we’re not.
I don’t know if Judge Clarke figured out what Davis Polk had done, or if she simply wants fuller arguments on the third-party subpoena issue. But her order yesterday essentially tossed out the letter. Instead, the defendants have to submit a full brief on the third-party subpoena issue by Dec. 8, and we have a week to respond. In the meantime, the third-party subpoenas are stayed.
Both briefs are supposed to be 10 pages.
I promise we will use them.
And I promise this will be the last time Davis Polk angle shoots us.