Discovery: Using it to Your Advantage While Combating Abuse

Ira H. Leesfield
Leesfield & Partners
2350 South Dixie Highway
Miami, Florida 33133
(305) 854-4900

The Court has more than once declared that the deposition-discovery rules are to be accorded a broad and liberal treatment to effect their purpose of adequately informing the litigants in civil trials.

Delays and abuses in discovery are the source of widespread injustice.

In re E.I. Du Pont de Nemours and Co.,.918 F.Supp. 1524 (M.D. Ga. 1995)

"DuPont, in light of the hundreds of claims and lawsuits which had arisen out of the use of its product Benlate 50DF, decided that it would not reveal the potentially damaging evidence generated by the Alta tests."

"Put in layperson's terms, DuPont cheated. And it cheated consciously, deliberately and with purpose. DuPont has committed a fraud on this court."

"For its discovery abuses in the under-lying and consolidated cases, which abuses prolonged the trial of those cases and made a mockery of the preparation for and the conduct of the trial, the court assesses a sanction against DuPont in the amount of $6,843,837.53."

"For its contempt of this court in obtaining the entry of the order of August 16, 1993.as a sanction for that civil contempt.[the court] assesses a sanction against DuPont in the amount of $100,000,000.00."

Chambers v. NASCO, Inc.,. 501 U.S. 32 (1991)

"Undeterred, Chambers proceeded with 'a series of meritless motions and pleadings and delaying actions.' These actions triggered further warnings from the court. At one point, acting sua sponte, the District Judge called a status conference."

"Chambers and the other defendants had '(1) attempted to deprive the court of jurisdiction by acts of fraud., (2) filed false and frivolous pleadings, and (3) attempted, by other tactics of delay, oppression, harassment and massive expense to reduce plaintiff to exhausted compliance."

"At the end of an extensive opinion recounting what it deemed to have ben sanctionable conduct during this period, the court imposed sanctions against Chambers in the form of attorney's fees and expenses totalling $996,644.65, which represented the entire amount of NASCO's litigation costs paid to its attorney."

In re Tutu Wells Contamination Litigation,. 120 F.3d 368 (3rd Cir. 1997)

"The discovery abuse primarily involves the alleged suppression by Esso's former counsel in the litigation.of a report by Jose Agrelot.summarizing the results of soil and liquid tests he had performed at the Esso Tutu site in December 1989. The suppression of this report is claimed to have dramatically increased the discovery time and expense for other parties in connection with their prosecution of the case."

"The sanction imposed on the lawyers was suspension from practice in the District Court of the Virgin Islands..The sanction imposed upon Esso was the payment of $750,000..The sanction imposed upon Goldman Antonetti was the payment of $250,000 to the Community Service Sanction Account, and the sum of $120,000 as counsel fees and costs. Esso was similarly assessed a sanction of $30,000 but paid that sum and does not challenge it on this appeal."

Poole v. Textron, Inc.,.192 F.R.D. 494 (D. Md. 2000)

"Textron did not perform an even minimally-adequate search for documents prior to Plaintiff's Motion for Sanctions. At the Cour't request, Textron described its efforts to locate documents and information requested by plaintiff. Review of Textron's seven page single space letter showed half-hearted, scatter-shot inquiries prior to the court-ordered investigation and inquiry efforts--often times only reacting to leads that plaintiff's counsel provided about Textron's prior litigation involving the same or similar golf cars or testing of the golf car type at issue."

"For all these reasons, the court imposes a monetary sanction of $37,258.39 jointly and severally against Andrew Gendron of Goodell, DeVries, Leech and Gray and Textron, Inc."

Selletti v. Carey, .17 Fed. Appx. 18 (2d Cir. 2001)

"On June 26, 1997, the district court dismissed Selletti's complaint as a sanction for Selletti's failure to pay previous monetary sanctions--a $5,000 sanction and $50,000 security bond for litigation costs--imposed for Seletti's violation of the district court's discovery orders."

"On remand the district court directed Seletti to produce a host of documents as evidence of his financial circumstances an thus the extent of his ability to pay the monetary sanctions. Selletti did so after the deadline imposed by the district court. In an order dated July 27, 2000, the district court again dismissed Selletti's complaint, citing three independent grounds: (1) Selletti's misconduct throughout the proceedings.; (2) his counduct in response to the court's order to produce financial records; and (3).he was financially able to pay monetary sanctions."

DLC Management Corp. v. Town of Hyde Park, .163 F.3d 124 (2d Cir. 1998)

"In a Report and Recommendation dated May 23, 1997, Magistrate Judge Fox considered the parties' objections to the January 3, 1997 Supplemental Report and Recommendation. He reiterated his earlier findings and recommended the the district court sanction defendants in the amount of $39,905. This amount reflected two-thirds of plaintiff's attorney's fees for pursuing discovery of the ZLRC records and maps, the Magistrate Judge having deducted one-third for certain ambiguities in plaintiffs' attorney's time records..He noted: 'Seldom has negligence been so gross and sanctionable as in the course of document production.'"

Carlucci v. Piper Aircraft Corp., Inc., .775 F.2d 1440 (11th Cir. 1985)

"We note from the record that the misconduct of Anania, inter alia, forced the appointment of a special master, obviously entainling fees and costs, caused discovery disputes resulting in several fruitless plane trips by Carlucci's attorney and staff, and necessitated numerous hearings and orders from four federal district court judges. While Anania argues that the fine was 'grossly excessive,' taken together Anania's handiwork may well have amounted to $10,000. The court on remand, upon a full accounting may, in its discretion, determine that a sanction greater than $10,000 is warranted. It may also find that the fine is better deemed costs to be paid in full or part to Carlucci and/or her attorney to compensate them for their expenses."

Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002)

"We are aware that the sanctions awarded in this case are severe. The sanctions, however, reflect Appellant's continual and flagrant abuse [FN2] of the judicial process in this case. The disctrict court was clearly justified in imposing severe sanctions against appellants."

"[W]e VACATE the district court's order in Case No. 01-13569 awarding more than one and a half million dollars in attorneys' fees and costs as the joint and several obligation of Appellants.[and] REMAND for a determination of the amount of each Appellant's sanctions, taking into consideration the person's ability to pay."

• Set the Tone Early
• Litigate in Good Faith
• Maintain a Paper Trail
• Pick and Choose Your Battles
• Know Your Judge

Rules to Follow in Every Case:

• Inquire into the facts of the case before filing a pleading, motion or any paper.
• Investigate the law applicable to the case.
• Do not submit pleadings that harrass, delay or increase the cost of litigation.
• Do not include unnecessary parties.
• Do not sign any document that misleads the court.
• Ensure each document truthfully explains the matter in itself without qualification.

Countermeasures to Avoid Sanctions:

• Attack the propriety of the discovery request or order - the request was improper ab initio.
• Point out opposing counsel's own misconduct.
• Argue that your failure to comply was in good faith, albeit mistaken.
• Argue that the sanction is disproportionate to the violation, absent proof of prejudice.
• Rely on your reputation.
• If the violation is clear, argue triviality.

"A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition f such conduct or comparable conduct of others similarly situated.. [T]he sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation."

Fed.R.Civ.P. 11(c)(2)

Improper Conduct Includes:

• Filing a frivolous suit or document.
• Filing a document or lawsuit for an improper purpose:
  • Request for excessive discovery;
  • Filing unnecessary motions;
  • Filing and dismissing a lawsuit, refiling later;
  • Other harrassing or dilatory tactics.
• Actions that needlessly increase the cost or length of litigation.

"If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee."

Fed.R.Civ.P. 26(g)(3)

• Discovery answers are consistent with the rules and warranted by existing law or a good faith argument for modification of existing law.
• Discovery requests are not interposed for any improper purpose, such as harrassment or delay.
• Discovery requests are not unreasonable or unduly burdensome in the context of the entire case.

• Noncompliance with a discovery order.
• Failure to admit in response to a Rule 36 request.
• Specified misconduct in connection with depositions, interrogatories or requests for inspection.
• Failure to participate in framing a Rule 27(f) discovery plan.
• Failure to make a disclosure under Rule 26(a) or Rule 26(e)(1).

"Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reaonably incurred because of such conduct.."

• Filing a baseless or deceptive pleading.
• Filing a baseless motion
• Serving baseless opposition papers in response to a motion.
• Pursuing a position that apparently lacks merit.
• Breaching a procedural stipulation.
• Failure to prosecute an action with multiple defaults.
• Failure to prepare a case for trial resulting in its reschedule.
• Filing a frivolous appeal or petition for review.
• Engaging in misconduct on appeal that extends or encumbers the appellate process.
• Repeatedly violating court orders by filing late papers.

The source of the court's inherent power is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."

- Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962).

• Dismissal of the action
• Default judgment
• Disqualification of counsel
• Preclusion of certain claims or defenses
• Admonition, reprimand or censure
• Preclusion of the introduction of certain evidence
• Preclusion of certain issues from the litigation

Factors Considered by Courts Imposing Sanctions:

• Did the offender act in good faith or bad faith
• Was the infraction willful, vindictive, negligent or frivolous
• What was the offender's knowledge, experience and expertise
• Was there any prior history of misconduct by the offender
• What expenses did the offended party suffer as a result
• Did the offended party suffer prejudice as a result
• What is the impact on the offender, including ability to pay
• How is the magnitude of the sanction related to the goal
• Is there a risk of chilling the specific type of litigation involved
• To what degree did the offender's actions cause the damages for which relief is sought

Factors Considered by the Court:

• Severity of the sanction.
• Interests of offender in having sanctions justified.
• Risk of erroneous imposition of sanctions.
• Interest of efficient use of the legal system.
• Whether sanctions were sought or sua sponte.
• The type of sanction sought by the opposing party.
• The type of sanction considered by the court.
• Whether the sanction rests on a bad faith basis.