Today’s blog post does not specifically involve an employment case. It is, however, about conduct that employment lawyers run into far too often. When I was a law student fifteen years ago, I worked as a research assistant for Dean Donald Polden. He was writing a book about employment law with two co-authors. That is when I became acquainted with the Honorable Mark W. Bennett of the United States District for the Northern District of Iowa. Judge Bennett was one of those co-authors. In addition to being a brilliant jurist, Judge Bennett has a very good head on his shoulders. I have followed his opinions carefully during the course of my career.
On July 28, 2014, Judge Bennett issued one of his best. The case was Security Nat’l Bank v. Abbott Laboratories, 2004 WL 3704277 (N.D. Iowa July 28, 2014). It dealt with an issue that trial lawyers wrestle with constantly. Judge Bennett addressed a case where a lawyer at one of the largest law firms in the country repeatedly interrupted his opposing counsel during a deposition and coached the witness. The lawyer repeatedly told the witness that he only had to answer questions “if you know” and constantly rephrased the examiner’s questions.
The offending lawyer’s conduct came to light during the trial, and Judge Bennett sanctioned him sua sponte. Judge Bennett bemoaned the discovery abuses that are so frequent in civil litigation today. He harshly criticized the lawyer’s frequent interruptions during the deposition, coaching the witness, and rephrasing of questions. As a sanction, Judge Bennett got creative. He sanctioned the attorney by requiring him to write and produce a training video that addressed his improper conduct in the deposition. He ordered that it be distributed to other lawyers in his extremely large law firm. While that didn’t cost the offending lawyer a great deal of money, it was embarrassing.
The following is lengthy quote from Judge Bennett’s opinion. It explains the state of civil litigation that many of us have grown to detest. Those who are reading this blog and try civil lawsuits, like I do, will recognize it far too well. My hope is that all of us will take this more to heart. Judge Bennett wrote:
Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal litigation right here in the United States. Over two decades ago, Griffin Bell – a former United States Attorney General, United States appeals court judge, and private practitioner – observed: “The criticism of the civil justice system has reached a crescendo in recent years. Because much of the cost of litigation is incurred in discovery, the discovery process has been the focal point of considerable criticism.” How little things have changed.
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. As my distinguished colleague and renowned expert on civil procedure Judge Paul Grimm of the District of Maryland has written: “It would appear that there is something in the DNA of the American civil justice system that resists cooperation during discovery.” 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.” Fed.R.Civ.P.1. It persists because most litigators and a few real trial lawyers – even very good ones, like the lawyers in this case-have come to accept it as part of the routine chicanery of federal discovery practice.
But the litigators and trial lawyers do not deserve all the blame for obstructionist discovery conduct because judges so often ignore this conduct, and by doing so we reinforce –even incentivize-obstructionist tactics. Most litigators, while often inept in jury trials (only because they so seldom experience them), are both smart and savvy and will continue to do what has worked for them in the past. Obstructionist litigators, like Ivan Pavlov’s dogs, salivate when they see discovery requests and are conditioned to unleash their treasure chest of obstructive weaponry. Unlike Pavlov’s dogs, their rewards are not food but successfully blocking or impeding the flow of discovery information. Unless judges impose serious adverse consequences, like court-imposed sanctions, litigators’ conditional reflexes will persist. The point of court-imposed sanctions is to stop reinforcing winning through obstruction.
While obstructionist tactics pervade all aspects of pretrial discovery, this case involves discovery abuse perpetrated during depositions. Earlier this year, in preparation for a hard-fought product liability jury trial, I was called upon by the parties to rule on numerous objections to deposition transcripts that the parties intended to use at trial. I noticed that the deposition transcripts were littered with what I perceived to be meritless objections made by one of the defendant’s lawyers, whom I refer to here as “Counsel.” I was shocked by what I read. Thus, for the reasons discussed below, I find that Counsel’s conduct warrants sanctions.
I do not come to this decision lightly. Counsel’s partner, who advocated for Counsel during the sanctions hearing related to this case (and who is one of the best trial lawyers I have ever encountered), urged that sanctions by a federal judge, especially on a lawyer with an outstanding career, like Counsel, should be imposed, if at all, with great hesitation and a full appreciation for how a serious sanction could affect that lawyer’s career. I wholeheartedly agree. I am still able to count each of my sanctions I have imposed on lawyers in my twenty years as a district court judge on less than all the fingers of one hand. Virtually all of those sanctions have been imposed on (or threatened to be imposed on) lawyers from out-of-state firms.