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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS


MARSHALL DIVISION

POSITIVE TECHNOLOGIES, INC. §


§
Plaintiff, §
§ CIVIL NO. 2:07 CV 67
v. §
§
LG DISPLAY CO., LTD., AND TOSHIBA §
AMERICA CONSUMER PRODUCTS, §
L.L.C. §
§
Defendants. §

FINDINGS OF FACT, CONCLUSIONS OF LAW AND SANCTIONS ORDER

On October 9, 2008, the court held a show cause hearing for why Jonathan Brackett Crocker

(“Crocker”) should not be sanctioned for violating the standards of practice to be observed by

attorneys practicing in this district. Pursuant to that hearing, the court finds that Crocker participated

in discovery misconduct, and in so doing has violated the standards of practice to be observed by

attorneys practicing in this district. The court makes specific findings of fact and conclusions of law

below. Any finding of fact that is actually a conclusion of law should be treated as such. Any

conclusion of law that is actually a finding of fact should be treated as such. The court also imposes

the sanctions included herein.

FINDINGS OF FACT

1. Crocker is an attorney for the firm Holland and Knight, L.L.P. in Washington D.C.

Crocker was admitted to the Florida Bar on November 3, 1994, and to the District of

Columbia Bar on May 11, 2007.

2. Crocker was admitted pro hac vice for this matter on November 21, 2007.
3. Crocker is representing Defendant LG Display Co. Ltd. in this case. On August 11, 2008,

the court ordered the parties to meet and confer on all outstanding motions (D.I. # 431).

Additionally, the court set a status conference and hearing on three of the plaintiff’s

discovery motions (D.I. ## 204, 365, 393), and a Motion for Sanctions filed by the

plaintiff (D.I. # 384). The plaintiff’s Motion for Sanctions was predicated on a very late

production by the defendant of over 300,000 pages of documents.

4. Prior to the hearing, Crocker negotiated with the defendants to withdraw their Motion for

Sanctions in return for an extension of time for discovery. Additionally, the defendants

agreed to pay for the plaintiff’s counsel to go to Korea for various depositions.

5. On August 27, 2008, James Brogan, representing the plaintiff, and Jennifer Ainsworth,

representing the defendant, signed an “Agreement Re Withdrawal of Positive’s Motions

for Sanctions and for Limited Extension of Discovery.” (D.I. 481, Ex. 2) The Agreement

required LG to produce several deponents in Korea. Attached to the Agreement, and

incorporated by reference, were exhibits A, B, and C. These exhibits were deposition

notices identifying specific people and topics for the depositions.

6. The following day, August 28, 2008, the plaintiff withdrew its Motion for Sanctions.

Having secured the agreement to withdraw the Motion for Sanctions, on August 29,

2008–one day later–Cocker wrote a letter to plaintiff’s counsel refusing to comply with

the agreement. Specifically, Crocker wrote that the three incorporated exhibits to the

agreement were not fully agreed to. (D.I. 481, Ex. 1). Crocker purported to alter the

terms of the parties’ agreement.

7. After reviewing all of the correspondence in this matter, the court finds no indication that

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the exhibits were not fully agreed to. Included in the record is an email that indicates the

notices were being reviewed. In a later email from Jennifer Ainsworth to Ann Marie

Byers on September 25, 2008, Ainsworth, acting for the defendant, confirmed they were

ready to sign with the “last change,” which concerned the number of days for the

depositions.

8. Plaintiff’s counsel was unsuccessful in persuading Crocker to comply with the

Agreement. On the eve of their trip to Korea, plaintiff’s counsel filed an Emergency

Motion to Enforce the Agreement (D.I. #467). With the parties’ consent, Magistrate

Judge Everingham heard the dispute via teleconference on September 26, 2008. Judge

Everingham ordered the defendant to fully comply with the agreement, including the

contents of Exhibits A, B, and C of the Agreement. Additionally, based on the record

developed in the motion to compel, Judge Everingham ordered Crocker to appear before

Judge Ward to show cause why he should not be sanctioned for violating the standards of

practice to be observed by attorneys practicing in this district.

CONCLUSIONS OF LAW

1. Local Rule AT-3 provides that attorneys who appear in civil and criminal cases in this

court shall comply with the following standards of practice in this district:

A. In fulfilling his or her primary duty to the client, a lawyer must be ever conscious

of the broader duty to the judicial system that serves both attorney and client.

C. A lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the

observance of which is necessary for the efficient administration of our system of

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justice and the respect of the public it serves.

D. A lawyer unquestionably owes, to the administration of justice, the fundamental

duties of personal dignity and professional integrity.

F. A client has no right to demand that counsel abuse the opposite party or indulge in

offensive conduct. A lawyer shall always treat adverse witnesses and suitors with

fairness and due consideration.

G. In adversary proceedings, clients are litigants and though ill feeling may exist

between clients, such ill feeling should not influence a lawyer's conduct, attitude,

or demeanor towards opposing lawyers.

H. A lawyer should not use any form of discovery, or the scheduling of discovery, as

a means of harassing opposing counsel or counsel's client.

K. Effective advocacy does not require antagonistic or obnoxious behavior and

members of the Bar will adhere to the higher standard of conduct which judges,

lawyers, clients, and the public may rightfully expect.

2. The court has found that Crocker impeded justice by participating in discovery

misconduct in this case. Crocker persuaded opposing counsel to withdraw a Motion for

Sanctions the court was primed to hear. To secure that withdrawal, Crocker negotiated an

agreement whereby the defendant would pay for depositions during an extended

discovery time. As soon as he secured that withdrawal, Crocker notified opposing

counsel he and his client would not be fully complying with that agreement.

3. Crocker failed to be ever conscious of the broader duty to the judicial system.

4. Crocker failed to cooperate with opposing counsel to effect efficient administration of

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justice and respect for the public.

5. Crocker failed to act with professional integrity and personal dignity by refusing to

comply with the Agreement.

6. Crocker acquiesced at his clients wishes to indulge in offensive conduct and act unfairly

to opposing counsel.

7. Crocker abused the discovery process in this case to harass opposing counsel and their

client.

SANCTIONS

Having found that Crocker violated the rules cited above, the court imposes the following

sanctions:

1. Jonathan Brackett Crocker is formally sanctioned for professional misconduct on the

record. If ever Crocker files any application for admission to any bar, when asked the

question whether he has been sanctioned or disciplined for professional misconduct, the

truthful answer to that question will be “yes.” Likewise, if ever Crocker files any

application for any other benefit that asks the question whether he has been sanctioned or

disciplined for professional misconduct, the truthful answer to that question will be “yes.”

2. Should Crocker at any time desire to be admitted to this bar, he is directed that such

application shall be directed to the undersigned Judge rather than through the normal

administrative process.

3. By April 9, 2009, Crocker is to take seventeen hours of continuing legal education in area

of professionalism and ethics from any organization accepted by the Florida Supreme

Court Bar. This is twelve hours above and beyond the continuing legal education

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requirements for the Florida Bar. By that date, Crocker is to certify to this Court that he

has completed those classes, identify the name of the courses, the date he completed

them, and that they are in fact accepted by the Florida Bar.

4. The court finds that the Crocker’s biography on the Holland and Knight website is

misleading. Crocker claims to be admitted to practice in this court without limitation. By

October 19, 2008, Crocker is to have the website changed to reflect he is admitted only

pro hac vice, for limited purposes only in this matter.

5. Crocker is put on formal notice that if at any time in this court there is any further

violation of the Professional Rules of Responsibility, the court shall proceed under Local

Rule AT-2 to seek Mr. Crocker’s disbarment from the bar of district.

6. The court has considered lesser sanctions and concludes that the above sanctions are the

minimum amount needed to dissuade misconduct of this magnitude.

SIGNED this 14th day of October, 2008.

__________________________________________
T. JOHN WARD
UNITED STATES DISTRICT JUDGE