Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.
When it comes to depositions, it doesn’t always reach “fatboy” levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.
Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….
Anyway, the good judge decided it was time to play the adult in Security National Bank of Sioux City v. Abbott Laboratories and raised the possibility of sanctions sua sponte against a Biglaw attorney. We won’t name the firm yet, but let’s just say it rhymes with “Cones Way.”
Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States.
Shakespeare? How mundane. He’s in Iowa, for God’s sake! This sentence should have been:
Trouble, oh we got trouble,
Right here in the United States!
With a capital “T”
That rhymes with “D”
And that stands for Discovery in modern federal civil litigation
I’m docking Judge Bennett 10 points for that oversight.
But that’s OK because Judge Bennett gets about a million points for putting his foot down on the lack of civility during discovery. Continuing the metaphor of dealing with children, Judge Bennett realized that simply waiting for one side to tattle on the other isn’t cutting it when it comes to policing attorney behavior.
When it comes to the objectionable behavior that Judge Bennett wants to see stamped out, he has some strong feelings:
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. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.”
Judge Bennett’s first complaint with Ghezzi’s deposition style arises from her love of objecting to “form” constantly without any explanation. As a native of the Southern District of New York, I understand Ghezzi’s side on this one: objections are generally supposed to be limited to “objection as to form” (and Judge Bennett admittedly cites precedent from the S.D.N.Y. and other jurisdictions for that conclusion). It may look dumb to a judge reviewing a transcript, but the time saved by slamming the door on grandstanding speaking objections is worth it.
But Ghezzi is pro hac in Iowa. This is why you retain local counsel to school you on what to do when you’re not in proverbial Kansas anymore. It smacks of Biglaw arrogance to square peg round hole all your common practices on every other jurisdiction. On that note, Judge Bennett notes that he pretty much only ever sanctions out-of-state lawyers. Surprise, surprise.
Putting aside the jurisdictional vagaries of “form,” Judge Bennett also calls out what he views as multiple instances of witness coaching and excessive interruption that transcend jurisdiction. On one deposition transcript, Ghezzi objects almost 3 times a page on average. No wonder she only objects to form — anything more specific would require another day of testimony.
So now we come to the sanction that Judge Bennett decided to issue, and it really smacks of traditional punishments for unruly schoolchildren. Basically Jones Day has to write an essay explaining what they did — only in video form:
Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. 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. The lawyer in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval…. Counsel need not make the video publicly available to anyone outside Counsel’s firm.
Sure, you don’t have to make it available to anyone outside the firm, but we sure would love to see it. This is a creative sanction reminiscent of when the Ninth Circuit asked a prosecutor to make the whole office watch a video of an en banc hearing. Or when the judge made Brandon make a movie about what he did wrong on that episode of Home Movies.
It’s about time judges take a more proactive role in policing discovery squabbles. Maybe this will stamp out some of the more glaring abuses.
Hopefully not all the abuses. ATL still needs benchslaps to write about.
The whole opinion is available on the next page….
Earlier: Judge of the Day: Judge Mark Bennett of Iowa Is ‘Underwhelmed’ By East Coast Law Firms
Iowa Judge Warns Prospective Clerks Not To Expect A ‘Balanced’ Life
The Greatest Letter Ever? The ATL Lawyer Letter Bracket — Day 1
The Greatest Letter Ever? The ATL Lawyer Letter Bracket — Day 2
Biglaw Firm Throws Even Bigger Hissy Fit
Remember Jones Day’s Hissy Fit C&D Letter? Here’s The Response!