“professional embarassment” [sic]: Michael Sussmann Catches John Durham Accusing First and Investigating Later, Again

There’s one more important detail from the John Durham related filings submitted Friday that’s worth noting. Michael Sussman has caught Durham making accusations before he investigated them first.


As Sussmann shows, when Durham submitted his original (timely) 404(b) notice on March 18, he said he was going to submit proof that Sussmann had failed to preserve texts he sent on his personal phone.

IV. The Defendant’s Failure to Preserve Firm Records During the Relevant Time Period

All Perkins Coie attorneys are required to maintain and preserve all firm records and communications that might exist on the attorney’s personal devices. This past week the government learned that, in connection with his departure from Perkins Coie, the defendant was required to turn over all communications constituting firm records that were contained on his personal devices. The evidence at trial will show that the earliest text messages turned over by the defendant date from November 25, 2016. There are extensive gaps in time for which no text messages were provided. The government is in possession of relevant text messages that the defendant exchanged during these time periods, including highly probative messages between the defendant and then-FBI General Counsel Baker.

Durham repeated and expanded the allegation in what he called his “supplemental” 404(b) notice, submitted late on March 23, which was actually an attempt to expand the scope of his initial notice and add two more items to it. In the interim five days, this allegation became proof — in the Durham team’s conspiracy-addled and typo-riddled brains — that Sussmann was intentionally trying to hide the text he sent James Baker setting up his September 19, 2016 meeting that Durham hadn’t found in time to charge Sussmann for lying on September 18, not September 19.

VI. The Defendant’s Failure to Preserve Firm Records During the Relevant Time Period

The defendant’s failure to preserve relevant law firm records and/or provide them to Law Firm-1 upon his departure is similarly relevant to prove the defendant’s “motive,” “knowledge,” “intent,” and “plan.” The defendant’s failure to provide these records to his employer prevented Law Firm-1 from learning about specific, highly relevant communications – including a September 18, 2016 text message containing substantially the same false statement as the one alleged in the Indictment. The defendant’s failure to preserve and provide such records supports the inference that the defendant had “knowledge” that his electronic communiations [sic] would incriminate him and, therefore, acted intentionally to conceal them. Such evidence also tends to support the inference that the defendant harbored a specific “motive” to conceal his communications, namely, to avoid criminal liability or professional embarassment. [sic] When combined with other evidence, these failures by the defendant also support an inference that the defendant intentionally executed a “plan” over time to conceal the involvement of particular clients in his work, and to prevent the discovery of evidence reflecting his own false statements on that subject.

Durham didn’t find that September 18 text until this year, as part of a two step process to find evidence pertaining to his star witness he hadn’t even sought before indicting Sussmann. In the first step, Durham finally got around to collecting evidence from Michael Horowitz and only then learned that DOJ IG had a Baker phone that Durham had been told about years ago but forgot about.

But it gets worse! As Sussmann revealed in his original 404(b) response that only got docketed on Friday, after discovering two of Baker’s FBI phones more than three months after he charged Sussmann, Durham only then asked Baker to check the cloud for his own text messages involving Sussmann. Among the things Baker provided in response were texts that showed Sussmann indicating to Baker in the days after their meeting that he had to check with someone — Rodney Joffe — before helping Baker kill the NYT story.

Finally, the Special Counsel seeks to introduce evidence that he recently received from Mr. Baker. Specifically, on March 4, 2022, Mr. Baker apparently retrieved from his personal phone copies of text messages that he had sent and received with Mr. Sussmann between 2016 and 2020. According to the Special Counsel, the text messages had been stored on the cloud and Mr. Baker had not thought to produce them earlier. (Apparently, though Mr. Baker is a key witness in the case, the Special Counsel never saw fit to serve him with a subpoena.) Those text messages include, among other things, texts indicating that Mr. Sussmann asked to meet with Mr. Baker in September 2016 not on behalf of a client but to help the Bureau; texts indicating that Mr. Sussmann told Mr. Baker he had to check with someone (i.e., his client) before giving him the name of the newspaper that was about to publish an article regarding the links between Alfa Bank and the Trump Organization; and other texts, including a copy of a tweet that then-President Trump posted regarding Mr. Sussmann. The Special Counsel argues that Mr. Sussmann failed to preserve these text messages in violation of Perkins Coie policy and that this purported violation of the policy gives rise to an inference that Mr. Sussmann intended to obstruct justice. See Original Notice at 2-3.

In other words, almost six months after charging Sussmann, Durham got around to obtaining proof that, in fact, Sussmann was not hiding the existence of a client, not to mention that the explanation he provided HPSCI in 2018 — that he wanted to give the FBI options, one of which (killing the NYT story) they took — was absolutely true.

He also obtained proof that the guy who hired Durham has been gunning for Sussmann for years — and that his star witness knew about it.

So, in response to the “professional embarassment” [sic] of having to admit that Durham had never subpoenaed his own star witness who — years earlier — a Durham-related investigator had deemed unreliable, Durham instead accused Sussmann of obstructing justice by getting a new phone. Crazier still, he leveled that accusation without first obtaining Perkins Coie’s retention policy before accusing Sussmann.

In response to the accusation, Sussmann himself subpoenaed the policy, which showed that the policy only applied to email and specifically excluded communications about scheduling a meeting like the September 18 text in question.

Sixth and finally, the Special Counsel seeks to introduce evidence that Mr. Sussmann purportedly failed to preserve certain text messages that he exchanged with Mr. Baker using his personal device, as was purportedly required by Perkins Coie record retention policies. As the Special Counsel is aware, Mr. Sussmann had not retained the text messages in question—which contain exculpatory information—because he replaced the personal cellphone he used to send them and does not store his personal text messages on the cloud. Nevertheless, the Special Counsel argues that this was a violation of Perkins Coie policy. However, when asked to identify or produce which specific Perkins Coie policies addressed Mr. Sussmann’s retention of these text messages, the Special Counsel was unable to do so. Instead, the Special Counsel disclosed that he did not have copies of the relevant firm policies when he made the allegation.

Subsequently, the defense issued a subpoena to Perkins Coie; obtained the relevant policies; and confirmed that none of those policies addressed text messages, let alone required their preservation. Instead, those policies—which govern the “retention and destruction” of client records—make clear that only significant client communications must be retained, and that electronic communications concerning scheduling do not satisfy the relevant definition of “significant communication.”


The policy explicitly provides that emails regarding scheduling, for example, do not rise to the level of a “significant communication” and would not, therefore, trigger the policy’s retention requirements. Id. Thus even if the policy applied to text messages—and it did not—the policy would not have required Mr. Sussmann to preserve copies of his text messages with Mr. Baker.


[T]he Special Counsel’s willingness to level this explosive allegation without even bothering to first obtain copies of the relevant Perkins Coie policies they accuse Mr. Sussmann of violating— policies that, on their face, do not require the preservation of the texts at issue—is nothing short of shocking.

As Sussmann noted in his Friday submission, effectively Durham forced Sussmann and Judge Christopher Cooper to then conduct the investigative steps that Durham should have taken before making baseless accusations to cover up his own investigative failures.

Second, in both his Original and Supplemental Rule 404(b) notices, the Special Counsel leveled unjust and baseless allegations of obstruction of justice against Mr. Sussmann—and he did so, it seems, without doing even the bare modicum of diligence that any reasonable prosecutor would do. In particular, the Special Counsel claimed that Mr. Sussmann failed to preserve certain text messages in violation of his former law firm’s (i.e., Perkins Coie’s) internal policy, and that this purported violation gave rise to an inference that Mr. Sussmann intended to obstruct justice. However, the Special Counsel leveled those incendiary allegations without even bothering to obtain copies of the relevant Perkins Coie policies that Mr. Sussmann supposedly violated. As the Special Counsel did not have the policies in question, the defense had no choice but to request that this Court issue a time-sensitive subpoena pursuant to Rule 17 to obtain the polices directly from Perkins Coie. See Ex. C at 24. As expected, none of the policies that Perkins Coie produced required the preservation of any of the text messages in question, contrary to the Special Counsel’s baseless claims. Id. Mr. Sussmann should not have had to waste his or the Court’s time because the Special Counsel took an accuse-first, gather-evidence-later approach.

By context, it appears that Durham has dropped his plan to accuse Sussmann of obstructing an investigation because — within weeks of an election in which his client was persistently hacked by Russia — he replaced his cell phone. (Note, Roger Stone also replaced a cell phone with highly relevant evidence on it in the days after the 2016 election — such as how much of the plan to pardon Julian Assange took place in advance of Assange releasing the John Podesta emails — and as far as I know, Durham’s predecessor as Special Counsel never considered charging him for obtaining a new phone.)

What remains of this incident, then, is just the “professional embarassment” [sic] of getting caught making accusations without adequately investigating those accusations first, as well as exculpatory texts that prove Sussmann was not hiding the existence of a client from the FBI.

This is not the first time that Durham has risked “professional embarassment” [sic] by making accusations before investigating them. Including the Baker-related failures laid out here, here are some of the investigative steps Durham did not take before accusing Sussmann of lying to cover up a plot involving Hillary Clinton to manufacture dirt on Donald Trump:

  • Interviewing a full-time Clinton campaign staffer before accusing Sussmann of coordinating with the campaign
  • Looking for the records proving that Sussmann and Rodney Joffe helped the FBI kill the NYT story until after he charged Sussmann
  • Learning how closely the FBI worked with Rodney Joffe on DNS-related issues
  • Finding the January 31, 2017 CIA meeting record at which Sussmann clearly explained he was sharing an allegation at the request of a client
  • Asking DOJ IG for evidence of the investigation on related topics that found no evidence Sussmann committed a crime
  • Discovering a similar tip that Sussmann had anonymously shared with DOJ IG on behalf of Joffe
  • Obtaining two James Baker phones, one of which Durham had been informed about years earlier
  • Subpoenaing Baker for exculpatory texts involving Sussmann he stored on the cloud

I suspect there is far more, including never checking DOJ records to learn that someone totally unrelated to the Democrats was pushing the NYT story more aggressively than Sussmann in the period in question, to say nothing of all the evidence showing that April Lorenzen’s suspicions that Trump’s campaign manager was money laundering payments from oligarchs close to Putin were absolutely correct.

As of Wednesday, Durham’s investigation entered its 36th month. The “professional embarassment” [sic] has been going on so long, it’s hard to even capture it all anymore (but here’s a more accessible version). What’s clear is that every time he finds exculpatory information he should have obtained before charging Sussmann, he doubles down on his conspiracy theories — an approach that’s bound to lead to more “professional embarassment” [sic] down the line.

Update: Clarified that according to the documents filed Friday, Durham only obtained the September 18, 2016 text on March 4. Also fixed my own “embarassing” [sic] typo in the table below.

67 replies
  1. Kalkaino says:

    Yikes! In a just system Durham would have been disbarred long ago. Thanks for great reporting.

    Not to pick nits but typo here: “in fact, Sussmann was not hiding the existance of a client….” I believe ‘existence’ is the spelling wanted.

    • Phil A says:

      I think you are missing that the whole point of Durham is to let everyone know that investigating republicans will result in a multi-year witch hunt where innuendo and slander will make you unemployable even when you end up winning. And there will be no consequences for the people who actually committed the crime. Because that is how it works in dictatorships, and the right is doing their best to set up America as a dictatorship.

  2. Zirc says:

    A minor point/quibble, but I make it because I’m quite slow when it comes to technological advances in our 21st-century world. Both the passages you cite and your own writing about the case in this post refer to replacement of a cell phone. But when I get a new phone any texts or records of calls are transferred to the new phone. I assume therefore that the subject of debate is actually the obtaining of a new phone number (which in turn probably involves a new phone). As I say, this may seem obvious to anyone reading your blog, but it is a distinction. I suspect most folks don’t replace numbers that often, whereas they probably get a new phone every couple of years.


    • P J Evans says:

      It’s possible to get a new phone and keep the old number – I did that last fall, when I had to replace mine.

    • skua says:

      I dropped my Android phone last week.
      It broke. I cannot retrieved the text messages on it without getting the circuitboard/screen repaired which would AIUI cost thousands.
      So now I have a new phone and no access to my texts from the last 3 years.

      iphones may automagically backup the content of text messages – I don’t know.
      Android phones haven’t been doing this AFIAK.

      • bmaz says:

        Pretty much went through the same with an iPhone couple of years ago. Even though the screen was so broken as to be completely unusable, they were able to extract most contacts, texts and photos. Not all, but quite a lot, and put it all on the new phone.

      • Rayne says:

        This is why I use Google Voice for messaging. Texts are save to my Google account and not locally to my Android alone. If your SIM can be pulled from your phone you might still be able to recover your messages.

    • emptywheel says:

      No, it would have been his phone.

      Back then, your texts were only preserved if you stored them in the cloud. Sussmann made it clear he did not. Now, manufacturers have a way of transferring contents from device to device if you replace your phone with one from the same manufacturer. But few manufacturers had that in 2016.

    • Cate says:

      My Samsung Android phone from 2014 automatically backed up all my texts which were then loaded to the new Samsung phone I purchased last September.

  3. Silly but True says:

    One bad, counter-intuitive take-away from this Durham experience is that clearly not enough resources were devoted by Durham /DoJ in beginning so that all of this could have been addressed far sooner than now/early 2022, and that Durham needed even more people turning over even more ricks so he could have avoided all of these gaffes.

    I’m not sure that’s a conclusion anyone wants or needs though.

    • Leoghann says:

      What you’re talking about is professional efficiency. I seriously doubt that Durham finds that desirable; it’s apparent he avoids it.

  4. Greg Johnson says:

    Thank you, Marcy! Now I have to figure out how to pronounce ‘embarassment’ so I am understood whenever I refer to him by that name…

    Am leaning toward em*bar*ASS*ment

    • Purple Martin says:

      Hey, that gives him a new MLA (Mixed Legal Arts) nickname [Announcer Voice]: Now stepping into the Octagonal Dock…the Challenger…

      Jo-o-o-hn … “Professional EmbarA-A-A-ASSment [SIC]” … DU-U-U-U-U-R-R-RHA-A-M!

    • Leoghann says:

      Since it’s the ‘r’ he’s leaving out, I’d suggest em-BAR-uss-ment. Sorta like “killed him a bar when he was only three.”

  5. Just Bill says:

    Reading Durham’s prosecution evidence in VI above – The Defendant’s Failure to Preserve Firm Records During the Relevant Time Period…

    If Durham were to transpose Trump for Sussmann his words would ring more substantial and truthful. My edit of Durham for reality…

    The defendant’s (Trump’s) failure to preserve relevant … records … and/or provide them … upon his departure is …relevant to prove the defendant’s “motive,” “knowledge,” “intent,” and “plan.” The defendant’s failure to provide these records from learning about specific, highly relevant communications The defendant’s failure to preserve and provide such records supports the inference that the defendant had “knowledge” that his electronic communications [sic] would incriminate him and, therefore, acted intentionally to conceal them. Such evidence also tends to support the inference that the defendant harbored a specific “motive” to conceal his communications, namely, to avoid criminal liability or professional embarrassment. When combined with other evidence, these failures by the defendant also support an inference that the defendant intentionally executed a “plan” over time to conceal the involvement of … (himself, associates and other conspirators) … to prevent the discovery of evidence reflecting his own false statements on that subject.

    Durham is prosecuting the the good guy and defending the bad guy.
    Too obvious!

    Absolutely Awesome MW, B, R, E and community. Thank you all.

    • Phil A says:

      Sussmann wasn’t even legally required to preserve documents unlike Trump.

      The whole thing is a scam meant to keep Trumpers on the edge of their seats waiting for the next Durham accusation while ignoring when the evidence falls flat.

      • bmaz says:

        Eh, that is pretty much complete bullshit. But, hey, thanks for reluctantly adding an “A” on your handle.

    • Grant says:

      Durham’s assertions certainly do read like a template to assign guilt. He kept it almost generic to avoid having to cough up actual evidence. When I scroll through the readings and still see “snip” it comes across as the baffle them with bullshit strategy.

  6. What Constitution? says:

    So Durham argues it’s a prosecutable dereliction for a private citizen to suffer the deletion of a calendar note or Tweet from a work phone based upon a false assertion that the private “company rule” associated with file retention may be falsely presumed to have forbidden that, even though he never checked to see whether it did (and it specifically did not).

    Imagine how disturbed Mr. Durham must be to recognize that in the case of Mr. Trump, there was and is an actual Federal statute requiring the President to preserve all presidential records during the President’s tenure. And that Mr. Trump was instead flushing things down toilets and removing them to his private residence, where, uh, “gaps ensued”. Oh, but wait, that’s not in Durham’s purview, so it never happened and has no consequence, right? But wait, he’s using DOJ resources to pursue Justice, isn’t he? Oh, no, that’s not in his purview either.

    The point might be made that if Durham thinks he can prosecute Sullivan for what appears to be the most extraordinarily unsupported hypothesis capable of being constructed around a theme of “destruction of evidence” postulated in quite some time, maybe somebody at DOJ could see an opportunity to demonstrate what an actual, factually supportable example of rock solid hiding/destruction of evidence in the face of clear statutory proscription should elicit in the world of law enforcement. But I guess Durham can’t logic himself past “but her emails”, so he probably won’t grasp the obviousness of his jihad.

    • What Constitution? says:

      Uh, yeah —- Sussman not Sullivan. Talk about “embarassment” …. On the plus side, at least I spelled Sullivan right and didn’t ignore some Spellcheck underlining. Sheesh.

  7. Savage Librarian says:

    For the Taking

    Red is right,
    And right is white,
    And blue is for forsaking,
    An epoch in the making still stands tall.

    What’s yours is mine,
    It’s how I shine,
    Of this there’s no mistaking,
    Like fun speech making, heed the call.

    Mine’s not yours,
    Not his, not hers,
    We never had handshaking,
    A model of our fake king tells it all.

    Might makes right,
    It’s in the fight,
    It’s all there for the taking,
    The future’s in lawbreaking, it’s a brawl.


    “Mrs. Mills – Mairzy Doats & Dozy Doats (Mares Eat Oats & Does Eat Oats)”

  8. noromo says:

    One question keeps percolating in my mind as I’ve been following this topic here (thank you, Doc, for your hard work): given Durham’s relative safety in his position, is “main” justice, the w.h., etc., simply letting Durham play out the rope on his “professional embarrassment” so that when it finally draws taught, he succeeds in yanking his own head clean off?

    • emptywheel says:

      I suspect so. For starters, I really fail to see how he makes it through Sussmann’s trial without egregious discovery violations.

      • bmaz says:

        Also, too, maybe not even through pre-trial motions. Doesn’t take much to clear that, but Durham has some serious issues.

        • Bay State Librul says:

          Have Main Justice set up another “Special Counsel to investigate Special Counsel Durham, call in the IG, or invoke the “res ipsa loquitar” doctrine where the jury can infer a prosecutorial misconduct penalty.
          In the meantime, take two and hit to right

    • Beth from Santa Monica says:

      As my p-chem prof used to say: give people enough rope and they will hang themselves. She didn’t mean taxpayer funded multimillion boondoggles, but the principle holds. What a colossal, disgusting waste the entire Durham saga is (including his prior forays – deleted torture tapes, anyone?).

  9. jhinx says:

    I found it highly amusing that the frequency of “professional embarassment” [sic] increased non-linearly toward the end of the post. Made me LOL each time I read it!

    In contrast, I imagine the judge will find Durham’s latest mishap most certainly not highly amusing.

  10. OldTulsaDude says:

    One such faux pas in an understaffed office may have been excusable, but two is a pattern. Is there no ethics body that oversees such behavior or does the masquerade of wearing the DOJ disguise obviate those partygoers from the consequences of misdeeds?

      • BobCon says:

        Does Horowitz have authority to dig in? Or was that one of the things Jon Kyl helped kill? Not that I would expect that Horowitz ever would.

        I’d love to know the real story of how he ended up as IG. The switch from Glenn Fine to Horowitz seems like one of those classic backroom deals to make the world a measurably worse place. Although I recognize Fine may have had legit reasons on his own to move on.

        If Kyl was involved in keeping the IG out of any oversight, it fits, at any rate. One of the signs of the rot of official DC is that Kyl was ever considered a Very Serious Person. He’s transparently awful, opposes good policy in a completely knee jerk way, jumps at the opportunity to do the bidding of bad people, and he’s stupid in an obvious way that usually takes longer to manifest itself in DC.

        • bmaz says:

          No, not as to real attorneys, and Durham is still one. Unfortunately. Also, too, Horowitz is terrible, never rely on that guy for anything that counts.

        • DrDoom says:

          My brother-in-law lost a political campaign against Kyl back in the 90’s. He described him as “representing the Shi’ite wing of the GOP.” No offense intended to actual Shi’ites.

          • bmaz says:

            The funny thing is, Kyl could not even survive in today’s GOP. One of the more impeccable dressers for a politician though.

            • DrDoom says:

              Sadly, you are right. The GOP Congressional class of ’94 and Newt changed things for the worse.

      • greenbird says:

        Sussman’s counsel gets some kinda big prize, and Duh-Ram gets NADA for making me cry all day from his stoopid mot 61.
        i will load up your post and read THAT to be able to continue sloshing through these two so so simple filings, knowing facts exist after all.

        • greenbird says:

          oh, hell.
          i remember the desk drawers …
          i had just stumbled upon josh marshall …
          i’m all dizzy again remembering that horrible time …

          but i converted your post to a pdf to put in my sussman file and am patting myself on the back. baby steps, bmaz.

  11. John Gurley says:

    Why does the DOJ allow this nonsense to continue?

    Is there no recourse for prosecutors who have gone off the rails?

  12. greenbird says:

    still pending ?
    59 MOTION to Dismiss Case if the Special Counsel Does Not Immunize Rodney Joffe

    • Hoping4Better_Times says:

      “texts indicating that Mr. Sussmann told Mr. Baker he had to check with someone (i.e., his client) before giving him the name of the newspaper that was about to publish an article regarding the links between Alfa Bank and the Trump Organization; and other texts….”

      I am not a lawyer, but I would assume that the Judge would read those texts before he can decide what is admissible at trial. Those texts exonerate Sussman. Case dismissed.

  13. DrDoom says:

    Lots of style points for working in “professional embarassment” [sic] so many times! An unintended self-referential masterpiece by Durham, appropriately exploited for our education and amusement by MW!

  14. bacchys says:

    More and more it’s looking like the Durham SCO exists to funnel shit into the rightwing propaganda machine.

  15. Cosmo Le Cat says:

    Let me see if I understand this correctly.

    Durham untimely obtained texts on Baker’s phones that reveal communications from Sussmann, where he indicates he sought to meet with Baker as a patriotic act and not on behalf of a client, while indicating that he uncovered information in the course of working for a client, and Sussman felt he should not share that on his own initiative without checking with that client. Sussmann’s text indicates that he wants to help the Bureau. It seems quite plausible that a patriotic-minded individual like Sussmann would feel it’s his duty to share this information and that this action can be undertaken without doing so on behalf of his client. So Baker understood that Sussmann, in the course of his employment, could gain information that he deemed useful to the Bureau and take steps to convey that information on his own initiative. As Marcy states, “Sussmann was not hiding the existence of a client.”

    Furthermore, the information Sussmann provided is actually contrary to the interests of his client, as it could (and did) lead to killing a newspaper story that, if published, would have inured to the benefit of his client.

    As a reward for his patriotic act, Durham twists Baker’s arm and distorts matters to make it appear that the opposite was true, that Sussmann was providing the info for a client’s benefit, and Durham determined that Sussmann’s alleged misstatement was somehow material and therefore criminal.

    So, after tardily discovering the exonerating text on Baker’s phone, rather than moving to dismiss the charge against Sussmann, Durham doubled down.

    • timbo says:

      That pretty much seems to be it. Certainly seems like grounds to have Durham sanctioned by the court and/or referred for disbarment…if, as someone else pointed out here, the system weren’t corrupt.

  16. Silly but True says:

    I’m starting to wonder more and more about the origin of Sussmann case in particular, seeing essentially an investigation in reverse.

    I have a sneaking suspicion that this didn’t particularly originate as an investigation into any Alfa wrongdoing.

    I’m wondering if this is a resultant of Durham’s first pre-Special Counsel task: the internal DoJ initial review of the OIG Mid-year referrals re: Durham’s leak investigation.

    Particularly, with respect to all of Baker’s media contacts.

    That is, was pinning Sussmann on the hook by Baker, Baker’s way of getting out of Durham’s noose?

  17. joel fisher says:

    You note that this is ‘not the first time that Durham has risked “professional embarrassment” ‘; but Durham operates at an elite level of shamelessness, not Trumpian, to be sure, but still a guy who can ignore ethics with impunity. And not the kind of impunity that comes from knowing there never will be any consequences for their misbehavior–bad enough to be sure–but rather the kind that doesn’t recognize misbehavior in the first place.

  18. John Paul Jones says:

    One thing I just noticed in re-reading Sussman’s reply, re: record keeping. Perkins Coie policy is that “[l]awyers should avoid retaining fragmentary handwritten notes that later could be misconstrued or taken out of context.” Which is the entire basis of Durham’s case. I wish Sussman’s lawyers had maybe given that one a little more highlighting in their reply, a nudge and a wink, but I guess (or hope anyway) that the judge is quick enough to see it.

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