Judge Blows Whistle for Delay of Discovery

Judge Blows Whistle for Delay of Discovery

We began week three of college football with tackles, touchdowns and top 5 tips for minimizing class action litigation. So it’s only fitting we close with a whistle for delay of discovery and the subsequent penalty issued in the Jones Day sanctions order.

When a Partner at the international law firm of Jones Day, objected and interrupted too often for the court’s liking while defending her client against a product liability lawsuit, the court responded with an unusual punishment this past July.

After a quick nod to Shakespeare’s “Hamlet,” Judge Bennett, a federal judge from the Northern District of Iowa, delivered his perspective on the state of discovery.

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught. … Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth.”

In the order, he specifically cites the form objections, witness coaching through interjections and excessive interruptions by counsel. He then moved on to the appropriate sanctions, which he weighed carefully.

Based on Counsel’s deposition conduct, I would be well within my discretion to impose substantial monetary sanctions on Counsel. But I am less interested in negatively affecting Counsel’s pocketbook than I am in positively affecting Counsel’s obstructive deposition practices. I am also interested in deterring others who might be inclined to comport themselves similarly to Counsel. The Federal Rules specifically acknowledge that one function of discovery sanctions should be deterrence.

The judge sanctioned counsel to write and produce a training video in which she, or another partner in the firm, explained the “holding and rationale of this opinion” and steps lawyers must take in order to comply during future depositions.

The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing in the video may mention the few jurisdictions that actually require only unspecified “form” objections and may suggest that such objections are proper in only those jurisdictions. … Upon completing the video, Counsel must file it with this court, under seal, for my review and approval. If and when I approve the video, Counsel must (1) notify certain lawyers at Counsel’s firm about the video via e-mail and (2) provide those lawyers with access to the video.

Not surprisingly, counsel chose to appeal the sanctions order, which has been stayed pending the appeal.

On behalf of his partner, Jones Day partner Daniel E. Reidy provided a comment to Bloomberg BNA.

“While the judge clearly has very strongly held views as to precisely how counsel should defend depositions, the conduct of the Jones Day partner in this case was well within what is permitted by various state and federal courts around the country.”

It will be interesting to watch if counsel is willing to play the judge’s obstruction-free ball, and if the sanctions order influences similar penalties in future courtrooms.

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