Court Sanctions Attorneys for “Scorched-Earth Approach to Discovery”
Alford v. Rents, 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010). In this employment discrimination litigation, the court reviewed the magistrate judge’s recommendation advocating sanctions against both defendants’ counsels individually for discovery misconduct. Upon review of the record, the court found substantial and repeated violations of both the Federal Rules of Civil Procedure and the Illinois Rules of Professional Conduct based on the filing of over 14 discovery-related motions, incessant “accusation-laced, uncivil correspondence,” the need for judicial supervision of depositions and the appointment of a special master to decide discovery disputes. In light of counsels’ “scorched-earth approach to discovery” in which the attorneys “embarked upon a course entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming, difficult, unpleasant, and expensive as possible,” the court adopted the magistrate judge’s recommendation and held the two attorneys personally liable for sanctions in the amount of $3,750 each, to be paid without reimbursement from the law firms or clients.
Cooperation in the discovery process has been increasingly stressed by courts around the country, as judges continue signing onto the principles expressed in the Sedona Conference® Cooperation Proclamation, which notes that zealous advocacy is consistent with cooperation in discovery. Despite these notable efforts and several court rulings admonishing counsel to simply get along with regard to discovery, the cultural change of a “reveal nothing, gain everything” mentality by attorneys has yet to occur on a significant scale. When will this shift happen? Perhaps movement on the cooperation front will not begin until clients start mandating to their counsel that cooperation in discovery is essential in order to prevent disputes and other roadblocks that only increase time spent in the discovery process which translates into a higher bill for the client.
Or, perhaps more ground will be gained through efforts such as the Seventh Circuit’s Electronic Discovery Pilot Program which seeks to develop and improve pretrial litigation procedures that provide fairness and justice to parties while reducing the cost and burden of ediscovery. Although only Phase One has been completed and reported on, the early results remain promising. According to the Phase One report, “92 percent of the judges agreed that the Principles [set forth in the program] had a positive effect on counsels’ ability to resolve discovery disputes before requesting court involvement.” Also according to this report, Principle 1.02 – which addresses cooperation – was often viewed as incredibly useful and allowed counsel to cooperate with each other while fulfilling their obligation to zealously advocate on behalf of their client.
Whatever the path shall be, it is clear that judges will not tolerate uncooperative counsel that disrupt the process with numerous discovery disputes and time-consuming arguments. As one prominent magistrate judge recently noted, he did not become a judge to resolve discovery disputes. Thus, don’t waste the court’s and your client’s time (and inherently money) by waging discovery warfare and losing sight of the big picture – the just, speedy, and inexpensive determination of every action and proceeding