9th Circuit to expedite Jones Day appeal in Orrick subpoena row. But why? – Reuters

The law firm of Jones Day in Washington, D.C. REUTERS/Andrew Kelly

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(Reuters) - The 9th U.S. Circuit Court of Appeals is both the busiest and the slowest federal circuit in this country when it comes to deciding civil appeals.

According to the Administrative Office of the U.S. Courts, the 9th Circuit closed nearly 1,800 civil cases between September 2019 and September 2020, more than twice as many as the next-busiest circuit, the 2nd. With that heavy caseload, it's understandable that the average time from the notice of appeal to a final order from the 9th Circuit was 15.3 months, well behind the next-slowest 12.1-month decision lag in the 10th Circuit.

Jones Day, however, will apparently not have to wait that long for the appeals court to decide whether it can force Orrick, Herrington & Sutcliffe and two Orrick partners to comply with its subpoenas in an arbitration that Jones Day has brought against an ex-partner who joined Orrick in 2019. On Monday, a 9th Circuit motions panel granted Jones Days motion to expedite the appeal. Briefing will conclude in early December and the case will be placed on the calendar for next February.

Why the special treatment for Jones Days appeal? I wish I could tell you. Jones Day, which did not respond to my email query on the 9th Circuit case, filed its motion for an accelerated appeal under seal, along with a sealed motion to keep filings confidential. Orricks opposition is also sealed, as is Jones Days reply. All that briefing will remain secret for the time being: In Mondays order, 9th Circuit Judges Margaret McKeown and William Fletcher said the seal will stay in place until the three-judge panel that will hear the appeal issues a ruling on Jones Days confidentiality motion.

I know, arbitration is supposed to be confidential. But its too late for secrecy in this case. We already know the key facts, thanks to Jones Days own efforts to enforce its subpoenas for documents and testimony from Orrick and Orrick partners Michael Torpey and Mitchell Zuklie.

As I told you in August, Jones Day initiated the JAMS proceeding in Washington, D.C., in 2020 against ex-partner Michael Buhler, whom it accused of breaching his partnership agreement and fiduciary duty when he was in negotiations to leave Jones Day for Orrick. At the time, Buhler was representing a Jones Day client before an arbitration panel that included an Orrick partner. When Buhlers potential conflict came to light, the Orrick partner stepped down from the panel, but Jones Days client told the firm that Jones Day was responsible for the extra cost and delay. Jones Day, in turn, wants Buhler to pay.

Those facts became public in a decision last May from D.C. Superior Court Judge Alfred Irving. Jones Day had petitioned the D.C. court to enforce compliance with the Orrick subpoenas issued by the JAMS arbitrator, retired federal judge Benson Legg. Irving dismissed Jones Days petition, ruling that he did not have personal jurisdiction over Orrick, which is based in California, and that Federal Arbitration Act rules required Jones Day to bring its petition in federal court. (Additional details about Jones Days fight with Buhler, including Buhlers counterclaim for nearly $2 million in allegedly unpaid earnings, subsequently emerged in the Global Arbitration Review.)

Jones Day in August turned to San Francisco federal court to enforce a re-issued summons for discovery from Orrick. The firm said the court had jurisdiction because, among other things, the JAMS arbitrator, Legg, planned to hold a hearing in California to take the Orrick partners testimony. In a publicly filed motion to expedite, Jones Day asked U.S. District Judge Jon Tigar to speed up the briefing schedule because Legg had set a hearing date in early September. Orricks lawyers at Williams & Connolly said in their opposition brief which was also publicly filed that Jones Day had created its own purported emergency by delaying its enforcement petition and pushing for an arbitrary hearing date.

Tigar ruled on Sept. 7 that he did not have the authority to compel compliance with the arbitration subpoenas. The FAA rules, he said, require petitions to enforce an arbitration summons to be filed in federal court in the district where the arbitration is seated, which, in this case is Washington, D.C. The judge rejected Jones Days argument that the seat of the arbitration can move to different districts for hearings before the arbitrator, though Tigar acknowledged precedent to the contrary from a trial court in Manhattan in 2019s Washington National Insurance Co v. Obex Group LLC, which was affirmed by the 2nd Circuit in 2020.

In the only public filing in Jones Days appeal of Tigars ruling the firms response to the 9th Circuits mediation questionnaire Jones Day said the main issue on appeal will be the trial judges holding that enforcement petitions must be filed in the district designated as the place of arbitration, rather than the district in which witnesses have been summoned to appear.

I get that Jones Day is in a rush to conclude the Buhler arbitration, which, according to a filing in the trial court, had been scheduled for a merits hearing in September. (Presumably, that date has been pushed back.) Jones Day also mentioned in a brief to Tigar that the JAMS arbitrator had experienced medical issues. Perhaps that is why it asked the 9th Circuit to expedite its case.

My point is that we dont know. We dont know how the firm convinced the 9th Circuit to expedite its case. We dont even know how Jones Day justified confidentiality for its motion to expedite, since its motion to seal is also ... under seal. And thats despite the D.C. judges public revelation of the facts of the underlying arbitration and Jones Days own public motion to expedite the trial court proceeding.

The Jones Day appeal will set important precedent on the Federal Arbitration Acts definition of the seat of arbitration. At the very least, the rest of us ought to know the rationale for keeping a lid on the firms motion to rush the case.

Read more:

Orrick thumbs nose at Jones Day in fight over subpoenas in partner arbitration

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the Worlds Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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9th Circuit to expedite Jones Day appeal in Orrick subpoena row. But why? - Reuters