A U.S. magistrate in Texas is urging the lawyers in a legal recruitment lawsuit to start focusing more on the facts of the dispute than dwelling on matters of process, as he suggested that a recent dustup over subpoenas issued to law firms was wasting "a lot of time and money."

The judge, Andrew Austin, expressed frustration about what he called "game playing" in the case, which involves a Texas recruiter's trade secret claims against a former employee named Evan Jowers. Austin, of the U.S. District Court for the Western District of Texas, on Friday denied Jowers' move to stop his former employer, MWK Recruiting Inc., from sending additional third-party subpoenas to other law firms.

Austin criticized Jowers' lawyers at DLA Piper for the court filing they submitted in their effort to stop MWK from sending out any more subpoenas. The filing had "certified," as required by the court's local rules, that the DLA Piper lawyers had met and conferred with MWK's lawyers in good faith before filing the motion. Reading an email chain during a telephonic hearing Friday, the judge said the certification was a "demonstrably false statement by a licensed attorney."

DLA Piper associate James Bookhout and Marc Katz, managing partner of the firm's Dallas office, apologized for the filing. "I do hear you loud and clear," Bookhout told the judge at one point. Bookhout blamed a "miscommunication" between himself and a senior DLA Piper attorney who had signed the certification.

"Unfortunately I did not see it again before it was filed," Bookhout said. He added: "We absolutely understand your frustration and I do apologize, your honor, for any statement in that certificate of conference that was not 100% accurate."

He said he would never "knowingly approve anything to any court that I did not know to be accurate." Bookhout said a new certification was submitted the next day to clarify the issue.

Austin said that sides in the case "are spending more time fighting about process, as opposed to what the actual facts of the dispute are about—wasting a lot of time and money. And if you want to waste your client's time and money, that's fine. But I'm not going to let you waste the court's time on this case."

Austin's remarks about process came just days after he criticized how the law firm Kirkland & Ellis had responded to a subpoena from MWK. The recruiting firm, which sued Jowers for allegedly breaking a noncompete agreement, sent out subpoenas to firms seeking placement information. The subpoena to Kirkland sought names and payment records that Jowers had made through 2019. Kirkland's resistance to the subpoena drew a rebuke from Austin.

Austin said in an order that he "could not be more disappointed with the manner in which [Kirkland & Ellis] has handled this subpoena." He said a Kirkland lawyer's "petty, technical, overly-argumentative emails are a study in what is wrong with civil discovery in our court system today."

MWK's Robert Kinney told ALM last week that Kirkland's response befuddled him. "We did a ton of work for Kirkland. I don't know why they decided they wanted to screw with us," Kinney said. A handful of firms compiled with MWK's subpoenas, he said. "Why would you not? It's a simple matter of spitting out an accounting report."

The judge on Friday denied Jowers' motion to stop additional subpoenas without prejudice. At the same time, Austin urged the lawyers in the case to turn to the substance of the dispute.

"Let's try to get this case focused on the legal merits of the dispute and not fighting about where documents are and what they might say," Austin said.

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