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Judge Creates the Ultimate Discovery Sanction: Humiliation

Judge Creates the Ultimate Discovery Sanction: Humiliation

Judges have been using a wide variety of remedies and sanctions in discovery cases. Beyond the usual orders of attorney fees, fines, adverse inferences, and limitations on use of evidence, some judges have been especially creative. Educational remedies, for example, have included orders for payments to support e-discovery programs, and orders to attend such programs.[1]   (While not a sanction, a favorite example of judicial creativity in dealing with discovery issues is Judge Richard Kramer, of the San Francisco Superior Court. Judge Kramer likes to hold “cookie lunches” with parties in discovery disputes to encourage cooperation, because “you can’t act like a jerk when you’re eating chocolate chip cookies.”[2] )

Now, another judge has exercised his substantial discretion to create a new variety of discovery sanction: a movie, in Security National Bank of Sioux City v. Abbott Laboratories, Case 5:11-cv-04017-MWB (N.D. Iowa, July 28, 2014). Judge Mark Bennett is requiring the sanctioned attorney’s firm to produce an instructional movie on how to not be obstructionist when taking depositions. Judge Kramer determined that requiring the sanctioned attorney’s firm to produce a video for internal firm use was the best way to deter future misconduct.

The sanction requires that “Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court.”[3] On to the public shaming: it also requires that “The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order.” Of course, those details will not remain secret, especially because the unique Order has already drawn significant attention. Above the Law has described the sanction approvingly, “It’s about time judges take a more proactive role in policing discovery squabbles. Maybe this will stamp out some of the more glaring abuses.”[4]

The conduct resulting in the sanction included: 1) objecting to form of many deposition questions (an acceptable practice in some jurisdictions, but not in Iowa); 2) using objections to coach the witness; and 3) frequently interrupting. While this sanction relates to depositions, attorneys should take heed of the judge’s message that disapproves generally of obstructionist conduct in all parts of discovery, including use of boilerplate objections to discovery requests, and slowness to produce requested information. Judge Bennett explains that this conduct persists because “most litigators, and a few real trial lawyers –even very good ones, like the lawyers in this case –have come to accept it as part of the routine chicanery of federal discovery practice.”[5]

 

[1] Pinstripe, Inc. v. Manpower, Inc., No. 07-CV-620-GKF-PJC, 2009 WL 2252131, at *4 (N.D. Okla. July 29, 2009) (ordering $2500 payment to bar’s e-discovery training program); Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2008 WL 66932, at *18–19 (S.D. Cal. Jan. 7) (ordering attendance at court ethics program), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008).

[2] The Recorder, Cookie Lunches Solve Discovery Disputes (July 25, 2011), p. 23, available at http://pdfserver.amlaw.com/ca/JudicialProf_0711.pdf.

[3] Security Nat’l Bank of Sioux City at 32.

[4] Joe Patrice, Biglaw Partner Ordered To Make A Video Apologizing For Discovery Abuses (July 30, 2014), available at http://abovethelaw.com/2014/07/biglaw-firm-ordered-to-make-a-video-apologizing-for-discovery-abuses/.

[5] Security Nat’l Bank of Sioux City at 3.

Tara Emory, PMP
Tara Emory, PMP
Tara Emory advises organizations and law firms on e-Discovery and information governance programs. Tara counsels clients on data management and compliance, policies, records management technology, and defensible deletion. In litigation, she is an expert on search methodologies, data preservation and collection approaches, discovery protocols, and strategies for resolving discovery issues with litigation adversaries, government regulators, and the courts. Above all, Tara seeks to solve her clients’ unique data problems in ways that reflect a best fit for each client and matter.
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