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 our incredible team of appellate lawyers as they fight for their clients to get the wrong decisions overturned and made right.

With masterful narration by D.C. partner and Appellate practice co-lead Cate Stetson, this series sets the firm apart from its competitors by featuring its top-ranked, 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 debuts on June 7, follows 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 of a subpoena directing Winter to appear and testify in the Colorado case, but the Hogan Lovells team representing Winter maintained that forcing her to travel out of state for the purpose of revealing her confidential sources violated 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, debuting June 14, follows a bet-the-product appeal after Providence Health & Services and MedTech company Nuance Communications were accused of defrauding the U.S. government by a data-mining company. This episode features D.C.-based Appellate partner Jessica Ellsworth, Los Angeles-based Litigation partner Mike Maddigan, and D.C.-based Investigations, White Collar, and Fraud partner Jonathan Diesenhaus, as well as client David Greenbaum.

Earlier this year, data analytics company Integra Med Analytics brought a qui tam action under the False Claims Act, alleging that the firm’s client, Nuance Communications, submitted false claims to Medicare that were coded for more lucrative secondary diagnoses than were supported by patients’ actual medical conditions.

The district court had originally ruled that the plaintiff’s pleadings were sufficient to move forward to discovery, because 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, with Ellsworth arguing the case. The Ninth Circuit ultimately agreed with Ellsworth’s argument that 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 self-sufficiency

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 towards a self-sufficient future. This episode features D.C.-based Appellate partner Jessica Ellsworth and Environment partner Hilary Tompkins, as well as client Raymond Hitchcock.

In 2017, anti-gambling group Stand Up for California and residents of Elk Grove, Calif., 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 against the nonprofit, 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.

With the counsel of D.C.-based Appellate partner Jessica Ellsworth, the Wilton Rancheria Tribe announced on April 27, 2021, that it had officially cleared its legal hurdles, allowing for the launch of the Sky River Casino project, helping to raise money for housing, education, and healthcare 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 is here, and listeners can find it on Spotify, Google Play, iTunes and other popular podcast platforms. Read more about Season 1 here.