By Alan Hoffman on May 10, 2017

Court stepsOn April 18, 2017 the United States Supreme Court did something unusual: it decided a discovery issue. In Goodyear Tire & Rubber Co. v. Haeger (2017), it reversed a $2.7 million sanctions order for bad faith discovery misconduct. And in Sec. Nat’l Bank of Sioux City v. Day, 800 F.3d 936 (8th Cir., 2015), another recent high profile discovery case, the United States Court of Appeals for the Eighth Circuit reversed a sanctions order requiring a lawyer to write and produce a training film on deposition conduct as a punishment for “obstructive deposition practices.” Each of these decisions held that the sanctions exceeded the court’s inherent authority.

Goodyear was unusual in that the misconduct—withholding discoverable test results– did not come to light until after the case had been settled and dismissed. Because the court could not enter a default judgment, it ordered the defendant to pay all the plaintiffs’ attorneys fees incurred during the suit, irrespective of whether they were directly caused by the misconduct. The Supreme Court held that only costs directly resulting from discovery misconduct can be awarded as a sanction, and that any additional amount would be punitive and improper without the procedural guarantees of a criminal proceeding. It remanded the case for determination of the costs properly awardable.

Security National involved attorney conduct in a deposition. The plaintiff bank, as conservator for a child, sued Abbott Laboratories alleging that Abbott’s baby formula caused permanent brain damage. The bank took the depositions of two Abbott employees during which Abbott’s lawyer made numerous objections.   Although the Bank’s counsel did not complain about the conduct of Abbott’s lawyer or any of the objections made, the judge overruled all of the deposition objections in pretrial proceedings. At trial, he ordered Abbott’s counsel to show cause why sanctions should not be imposed for “making numerous objections that lacked good faith basis,” and for “delaying and impeding the questioning of the witnesses.”

After a jury verdict for Abbott, the judge held a hearing in which he complemented Abbott’s lawyer, but nonetheless imposed sanctions. Saying that he intended to deter “out-of-state law firms” from “obstructive deposition practices,” he ordered the attorney to produce a training film supporting his holding and rationale, including “the impropriety of unspecified ‘form’ objections,[1] witness coaching and excessive interruptions.”

The lawyer appealed, and the Court of Appeals reversed. While acknowledging that “discovery abuse has been a topic of widespread concern in the legal community,” it held that before sanctions are imposed a lawyer must be given notice of the sanctions being considered, and an opportunity to be heard. Saying that sanctions act as a symbolic statement about the quality and integrity of an attorney’s work–“a statement which may have a tangible effect upon the attorney’s career”—it found that there had been no real notice of the sanctions the judge had in mind or of their unusual nature. It further found that the judge failed to address the probable consequences of the proposed sanctions. “Once information about an unusual sanction appears in public,” it said, “the damage to the [lawyer]’s career, reputation and future professional opportunities can be difficult if not impossible to repair.” Concluding that the lawyer had already suffered “inevitable financial and personal costs,” the Court of Appeals declined to remand the case for further proceedings and vacated the sanctions order outright.

While lawyers may breathe a sigh of relief at such appellate decisions curbing excessive judicial zeal in policing discovery, there is another side to this coin. State and Federal judges are justly impatient with excessive attorney zeal in conducting discovery.

The Federal Rules of Civil Procedure were amended in 2015 to emphasize that lawyers, as well as the courts, have a responsibility to achieve “the just, speedy, and inexpensive determination of every action.” The official Committee Notes to the amendments state, “Effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.” (emphasis added).

Truer words were never spoken. Hyper-aggressive tactics, in discovery and elsewhere in litigation, are counterproductive. They invite retaliation in kind, increase the cost and burden of litigation, and benefit no one.

Securing the “just, speedy and inexpensive determination of every action” is the duty of we who work with the judicial system, State or Federal. We owe it to all concerned—the public, the courts, other parties, our clients, and ourselves—to act professionally and collaboratively, in the interest of justice. Everyone benefits when that occurs.

[1] In some jurisdictions, lawyers are required to make only unspecified objections to the form of deposition questions.