Shutterstock_136443644When can "newly discovered evidence" save you from a bad outcome, even after the time for appeal has expired?

Rarely, the D.C. Circuit ruled on May 13.

Too rarely, Blawgletter thinks.

Wanna Be Startin' Sometin'

The D.C. Circuit's decision came in a case by one of Michael Jackson's last managers, Raymone K. Bain. Bain brought the case on May 5, 2009 — just weeks before Jackson's death (by propofol and lorazepam) on June 25, 2009.

Bain claimed that Jackson owed her $44 million as a 10 percent fee for bringing him projects under a May 2006 Personal Services Agreement.

Beat It

MJJ Productions, Inc., and the Estate of Michael Joseph Jackson moved for summary judgment against Bain's case,* citing a Payment and Release Agreement that Bain signed in December 2007.

Under the PRA, Jackson paid Bain about $500,000 in “full and final satisfaction of any [and] all monies, known or unknown, to be owed to you by the Jackson Parties with respect to any and all agreements whether verbal or written that you may have entered into with the Jackson Parties from the beginning of time until December 27, 2007.”

Don't Stop 'til You Get Enough

Bain opposed the motion to dismiss Because: Reasons. The Reasons included fraud, mistake, and forgery (of Jackson's signature). Bain also said the release language didn't really cover "any [and] all monies . . . with respect to any and all agreements . . . entered into with the Jackson Parties" as of December 27, 2007 but instead excluded "claims concerning future work or deals yet to be finalized." Bain v. MJJ Productions, Inc., No. 12-7061, slip op. at 3 (D.C. Cir. May 13, 2014).


The court ruled against Bain on May 7, 2010. But Bain didn't appeal.

She instead waited until October 4, 2010, to file a motion to set aside the summary judgment against her under Rule 60(b)(2). She cited "newly discovered evidence" — an April 24, 2008 letter, in which the King of Pop himself wrote:

I have never terminated your services nor did I null and void any of your Agreements. I know nothing about a release form. I neither authorized or signed the same. Therefore, I am authorizing you to continue to communicate with Mr. Yakoob regarding the Sultan’s property in Las Vegas, and to continue your role as my General Manager and President/COO of The Michael Jackson Company.

Bain, slip op. at 4-5. Bain alleged that he got a copy of the letter in late June or early July 2010 from a "consultant" to Jackson. Why the consultant chose to bring a box full of Jackson stuff to Bain more than a year after Jackson died does not appear.

Leave Me Alone

The district court held that the letter couldn't count as "newly discovered" under Rule 60(b)(2). The court pointed out that, at the time he responded to the motion for summary judgment, Bain had known about the letter, at least in the sense that he recalled that it once existed. The fact that he didn't get a copy until after the court granted summary judgment did not matter to the court.

The district court also ruled that Bain hadn't used enough "due diligence" to track down a copy of the letter for purposes of Rule 60(b)(2). Bain should have at least mentioned the letter in his opposition papers, the court noted, but did not.


The court of appeals affirmed. It disagreed that the letter couldn't qualify as "newly discovered". In the panel's view, "evidence that was lost, hidden, or unavailable during trial could qualify as 'newly discovered evidence' when later found, even if the evidence was known to the movant at the time of trial." Bain, slip op. at 8.

But the court agreed that Bain had failed to meet the due diligence test. Why didn't Bain ask the district court for help in finding a copy of the letter, the court wanted to know. It wrote:

Bain . . . ultimately offers no justification for her failure to mention the 2008 letter to the district court, to seek the court’s assistance in locating a copy, or to ask the defendants for any copy in their possession. Nor does she suggest that any such efforts to locate the letter could not have borne fruit. See In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867, 873-74 (D.C. Cir. 2014). In those circumstances, the district court did not abuse its discretion in finding that Bain failed to exercise reasonable diligence.

Bain, slip op. at 11.

Never Can Say Goodbye

Blawgletter thinks that the courts expect too much. They say that, even if you have no reason to believe that a copy of a document still exists, you must cite it and ask the court to help you find a copy it. The panel cites only to the original — which seems never to have turned up — but doesn't explain the relevance of its merely possible existence. The copy that Bain eventually found came from a file relating to the Sultan of Brunei. How could Bain have asked for help finding that copy?

The courts also seem to have assumed that Bain had a photographic memory of what the April 2008 letter said. That feels like a big leap to us. The only evidence relating to Bain's knowledge said nothing specific about the letter and instead noted that "I knew I had correspondence from Mr. Jackson" — hardly proof that Bain knew of the April 2008 missive or recalled its contents. Bain, slip op. at 6.


*The court actually converted a motion to dismiss into a summary judgment motion, but it amounts to the same thing.

Photo credit:    Joe Seer /


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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.