Magistrate Cole Condemns Hard-Ball Litigators

The case is captioned:  LM Insurance Corp. v. ACEO, Inc., No. 08 C 2372, the unpublished opinion is dated October 25, 2011.

In the opinion, Magistrate Jeffrey Cole awards sanctions to the plaintiff in the litigation against the defendant and its attorney who ignored the court’s ruling on a motion to compel by continuing to withhold documents from the plaintiff.

The court described the conduct of the defendant and its lawyers as follows:  “On September 1, 2011, I granted the Plaintiff’s Motion to Compel. [#202, 211]. What necessitated the motion was but the most recent in a long series of unapologetic failures by the defendants and their lawyers to abide by their obligations to participate fully and fairly in discovery. Those failures raise an additional element of concern since one of the defendants’ counsel, Andrew L. Jones, is appearing in this case pro hac vice. The history of the case and illustrative examples of the unacceptable conduct by the defendants and their lawyers may be found in: LM Ins. Corp. v. ACEO, Inc., 2011 WL 2937300, 2 (N.D.Ill.2011); LM Ins. Corp. v. ACEO, Inc., 2010 WL 893097, 1 (N.D.Ill.2010); LM Ins. Corp. v. ACEO, Inc., 2010 WL 1655206, 2 (N.D.Ill.2010) (“All parties in litigation have an obligation to participate fairly in discovery. Alliance’s response to my order of March 10th is indefensible and makes a mockery out of these obligations.”); LM Insurance. Corp. v. ACEO, Inc., 2010 WL 1655206 (N.D.Ill. 2010).[2]”

The court explained its ruling as follows:  ”

Judge Shadur has attributed “the decline in the quality of legal life” to the “sharp increase in the number and proportion of hard-ball litigators” — those “obnoxious people . . . who make it a point not to be accommodating” and who are always “intransigent” regardless of the circumstances. Milton I. Shadur, Hardball Litigators, 20 LITIGATION 21 (1993). For the late Judge Will, one of the most respected district judges in the history of the Nation, “[p]art of the answer is more judicial involvement. We should no longer be willing just to sit up there and, when somebody commits a foul, call foul and give the other side two free throws. Judges need almost to treat it personally.” Jeffrey Cole and Rob Shapiro, An Interview With Judge Hubert L. Will, 20 LITIGATION 26, 29 (1993).

The behavior of Mr. Jones in this case calls into question whether his permission to appearpro hac vice should be rescinded. His conduct is not consistent with that expected of members of the bar of this court Were the decision mine, I would give very serious consideration to rescinding Mr. Jones’ permission to participate further in this case. But that decision is a matter for the plaintiff to take up with the district judge. However, I do have the authority to consider a further award of fees for the time spent in preparation of plaintiff’s reply brief. If the plaintiff chooses, he may make a further motion, supported by a memorandum of law, for fees to be awarded personally against Mr. Jones pursuant to 28 U.S.C. §1927. The motion and memorandum must be filed within 14 days. Mr. Jones shall have 14 days to respond and the plaintiff shall have 7 days to reply.”

Edward X. Clinton, Jr.

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