Season 2 of Hogan Lovells 'Proof in Trial' podcast series follows top-ranked Appellate practice

When the trial process ends, the appeal process often begins. Season 2: Appellate Edition follows Hogan Lovells appellate lawyers as they fight for their clients.

With narration by D.C. partner and Appellate practice co-lead Cate Stetson, this series sets the firm apart by featuring its renowned Appellate practice. Each episode features not only the lawyers involved, but the clients who were impacted. 

A situation every journalist fears

Episode 5, which is out now,  follows Washington, D.C. based appellate partner Sean Marotta and New York-based litigation partner Ben Fleming on their journey fighting to keep Jana Winter, a former Fox News journalist, out of jail for protecting her sources after reporting on a mass shooting in Aurora, Colorado. 

In 2013, Winter had been under subpoena to testify about confidential sources relating to her coverage of a 2012 movie theater shooting in Aurora, Colorado. She originally reported that a “chilling notebook” had been sent to the University of Colorado by the defendant James Holmes, citing two unnamed law enforcement officials as her sources.

A lower court in New York approved a subpoena directing Winter to appear and testify in the Colorado case. The  Hogan Lovells team representing Winter maintained that forcing her to travel out of state to reveal her confidential sources violating the state’s clear policy and tradition “of providing the utmost protection of freedom of the press” based on New York’s Shield Law for journalists, the strongest such law in the nation.

The New York appeals court agreed, finding that “safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege,” and quashed Winter’s subpoena to testify on 10 December 2013.

“Knowing that I was dealing not with a faceless corporation, but a real living, breathing person who had plants to water and was worried she couldn’t do it if she went to jail, it adds the pressure, but it also makes you be your absolute best,” Marotta recounts in the podcast. “It was knowing that if I spent another hour on this case, if I spent another two hours on this case, I was helping Jana, who was a real person who needed our help.”

Big data, big defense – Fighting allegations of fraud

Episode 6, which debuts June 14, follows a bet-the-product appeal after MedTech company Nuance Communications was accused by a data-mining company claiming to be a whistleblower of defrauding the U.S. government. Data analytics company Integra Med Analytics brought a qui tam action under the False Claims Act, alleging that firm client Nuance Communications caused hospitals to submit claims to Medicare that were coded for higher cost secondary diagnoses than are statistically common. 

The district court originally had ruled that the data-miner’s pleadings were sufficient to move forward to discovery, reasoning that it was plausible that the statistical outcome resulted from fraud. But the Hogan Lovells team petitioned the Ninth Circuit to accept the case on interlocutory appeal, which would have the advantage of sorting legal issues first and avoiding the costly discovery process.

Appellate partner Jessica Ellsworth (Washington, D.C.) argued the case. The team included  litigation partner Mike Maddigan (Los Angeles), and  Jonathan Diesenhaus, a Washington, D.C.-based partner in our White Collar, Investigations, and Fraud practice. The Ninth Circuit ultimately agreed that the allegations did not plausibly plead fraud, and reversed the district court’s order denying a motion to discuss.

“The Hogan Lovells’ team effort was everything in-house counsel hope for in their outside counsel,” said client David Greenbaum of Nuance Communications. “The expertise was apparent at every phase – starting with perfect client communication and strategy development, working effectively with our partners, and culminating in top notch briefing and oral argument. There was a process and professionalism that worked!” 

An appeal for tribal self-governance

Episode 7, out June 21, chronicles the journey of Wilton Rancheria, a Native American tribe based in Sacramento, and the Hogan Lovells team helping them to reclaim their land and work toward a self-sufficient future. 

In 2017, a group known as Stand Up for California! sued the Department of the Interior over the agency’s decision to take land into trust on behalf of the Wilton Rancheria tribe. When the D.C. Circuit ruled in favor of Interior and the tribe, Stand Up for California! petitioned the U.S. Supreme Court to take up its case, which the Court declined to do, handing the tribe a decisive victory in its efforts to achieve self-sufficiency.

The Hogan Lovells team representing the tribe included Ellsworth and Hilary Tompkins, a partner in our Global Regulatory practice group, who represents clients in matters involving natural resources, environmental law, energy, and Native American law. 

Wilton Rancheria announced on April 27, 2021, that it had officially cleared the legal hurdles allowing for the launch of the Sky River Casino project, helping to raise money for housing, education, and health care for its more than 800 members.

“Time after time courts have rejected these desperate and baseless attempts to stop our project,” said Wilton Rancheria Tribal Chairman Jesus Tarango. “We had to fight for federal recognition. We had to fight for our land. And now, thanks to the U.S Court of Appeals, we’ve taken another major step toward our goal of self-sufficiency.”

The project was able to help create thousands of jobs and major long-term benefits for Elk Grove and the surrounding economy, freeing up for investment $186 million to support police, schools, roads, and other services.

The Proof in Trial podcast series is here, and listeners can find it on Spotify, Google Play, iTunes, and other popular podcast platforms. Read more about Season 1 here.