A review of sanctions and discovery decisions under the Federal Rules of Civil Procedure by Ed Clinton, Jr.
Month: June 2012
DESERT SCHOOLS FEDERAL CREDIT UNION v. Johnson, Court of Appeals, 9th Circuit 2012 – Google Scholar.
This is an unpublished decision in which a lawyer was sanctioned after a case was remanded to the state court. The lawyer argued that the district court lost jurisdiction to award sanctions after the case was remanded. Under well-settled law, the district did not lose jurisdiction and the sanctions award was affirmed.
Edward X. Clinton, Jr.
Sheehan v. City of Markham, Dist. Court, ND Illinois 2012 – Google Scholar.
This is an unpublished decision involving a motion to compel depositions. It appears that the plaintiff was attempting to take the depositions of three Markham police officers. The court explained: “The current motion to compel recounts the difficulties over a period of months the plaintiff’s counsel has had in securing dates for depositions and contends that her efforts to schedule things have been met with intransigence on the part of the defendants’ lawyer. The defendants’ response essentially denies any wrongdoing or uncooperativeness. I need not resolve the conflict in the details, for the overall record shows that the plaintiff has been stymied and needlessly so in attempts to schedule depositions and that counsel for the defendants has plainly not been cooperative in the way and to the degree required by the Federal Rules of Civil Procedure. As a consequence, the depositions of Officers Starks and Gethers still have not been scheduled. And the fact that discovery has only a few more months to run does not justify what the defendants’ lawyer has done.[1]” The court then ordered the depositions to take place on certain dates and awarded the plaintiff its reasonable attorney fees under Rule 37.
Comment: Judges hate getting involved in disputes over trivial matters such as deposition scheduling when there are much more important and pressing matters for them to attend to.
Edward X. Clinton, Jr.
DUTTLE v. Childress, Dist. Court, D. New Mexico 2012 – Google Scholar.
In litigation, depositions are taken pursuant to notice and, almost always, the agreement of the lawyers on scheduling issues.
This case presents the extremely odd situation where the lawyers agreed to take certain depositions of the plaintiffs at a place and time; defense counsel traveled to New Mexico to take the depositions and then the plaintiffs did not show up.
The defendants sought sanctions and the district court granted those sanctions pursuant to Section 1927.
The court explains: “Defendants’ counsel traveled from Albuquerque to Las Cruces in anticipation of taking the depositions as noticed. See docs. 64, 66. Despite receiving proper notice, none of the Plaintiffs appeared for their deposition. Doc. 56 at 2. Although Plaintiffs’ counsel was explicitly told by his clients several days before the scheduled depositions that they would not appear, he did not advise Defendants’ counsel of this fact. See doc. 87 at 19 (asking counsel about his failure to contact opposing counsel despite knowing clients would not appear).”
The court ordered the plaintiffs and their lawyer to pay the sanctions award of $3,600.
Comment: this is remarkably rude and inconsiderate behavior. Defense counsel had to prepare for the depositions and then travel to take them. Defense counsel lost time that could have been better spent doing other things. Finally, the sanctions award was modest.
Tribble v. Evangelides, 670 F. 3d 753 – Court of Appeals, 7th Circuit 2012 – Google Scholar.
In a case against two Chicago police officers, the Seventh Circuit has held that the defendant failed to make a proper disclosure of the opinions of an expert witness.
The case was a false arrest case. The charges were dismissed by the Circuit Court of Cook County. The defendants sought to call an Assistant State’s Attorney as an expert witness. The court found that the witness did offer expert testimony and that the plaintiff was prejudiced by the testimony.
The court explained:
“Rule 26(a)(1) requires, among other things, the disclosure of the names and addresses of fact witnesses. Rule 26(a)(2) requires that expert witnesses be disclosed. That duty to disclose a witness as an expert is not excused when a witness who will testify as a fact witness and as an expert witness is disclosed as a fact witness. Musser, 356 F.3d at 757. This is a strict but well-founded requirement: “Knowing the identity of the opponent’s expert witnesses allows a party to properly prepare for trial.” Id. Without proper disclosures, a party may miss its opportunity 760*760 to disqualify the expert, retain rebuttal experts, or hold depositions for an expert not required to provide a report. Id. at 758. Because of these and other ways a party may be prejudiced by an improperly disclosed expert, the sanction is severe. Under Rule 37(c)(1) “exclusion of non-disclosed evidence is automatic and mandatory… unless non-disclosure was justified or harmless.” Musser, 356 F.3d at 758.
In this case, non-disclosure was neither justified nor harmless. Well before trial defendants announced that they wanted to have an ASA (or the law student who acted as one) testify about the significance of a no probable cause finding at Branch 50. But, crucially, the district court specifically ruled that it would not allow such testimony—it would not allow testimony that charges like Tribble’s are traditionally thrown out. Disagreement with that ruling or a belief that such testimony would be lay and not expert opinion (or no opinion at all) is not justification; at best, it’s just a misunderstanding of law. Musser, 356 F.3d at 757.
And non-disclosure was not harmless.”
The court explained that the testimony was prejudicial because the plaintiff was deprived of the opportunity to get testimony from a rebuttal expert.
Comment: the expert disclosure rules require that the lawyer exercise a great deal of judgment. He has to think about what testimony is needed and, critically, what “fact” witnesses are really giving expert testimony.
Edward X. Clinton, Jr.
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