Tag Archives: Civil Litigation Sanctions

Goodyear v. Haeger: The Supreme Court Muddles Sanctions Law Again

Earlier this month the Supreme Court decided Goodyear Tire & Rubber Co. v. Haeger et al., a case I wrote about way back in 2012 involving the scope of sanctions (including attorney’s fees) available when a party to a lawsuit brazenly lies about important evidence throughout most of the case.       The case involves a tire defect lawsuit and the extraordinary lengths to which the defendant, Goodyear, went to hide evidence of its culpability.       These are the underlying facts: the Haeger’s motorhome swerved and flipped over when one of the Goodyear G159 tires blew out. ... Continue Reading

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Lawyers Are Responsible For Their Clients’ Production of Documents

Earlier this week, I wrote about lawyers obstructing discovery by responding to discovery interrogatories themselves, either by letter or by an unverified response, rather than by having their client answer. Federal Rule of Civil Procedure 33(b) makes clear that’s just plain wrong.   When it comes to requests for production of documents (or electronically-stored information), the Rules are a bit more intricate — but, when used properly, more powerful.   Unlike Rule 33, Rule 34 (relating to requests for production of documents and electronically stored information) has no similar requirement that the party sign the responses. Thus, a lawyer may ... Continue Reading

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A Lawyer’s Letter Is Not A Substitute For Interrogatory Answers

A couple weeks ago, I wrote about how lawyers abuse “meet and confer” requirements to obstruct civil discovery. This time, let’s talk about lawyers obstructing discovery by responding to discovery interrogatories themselves, rather than by having their client answer.   It’s a common progression of events:   1. Lawyer A serves a bunch of interrogatories on Lawyer B. 2. Lawyer B responds with a bunch of boilerplate objections. (See my prior post for more.) 3. Lawyer A threatens to file a motion to compel. 4. Lawyer B “answers” some of the requests either: a. by sending a letter that generally ... Continue Reading

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Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?

Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.   The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA ... Continue Reading

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When Does A Lawyer’s Demand Letter Become Extortion?

Conventional legal wisdom holds that 95% of lawsuits settle. Is that true? Maybe not, according to this 2009 analysis, but it’s clear that most civil disputes are indeed resolved by the parties before the trial, appeal, and judgment enforcement process is completed. That, in turn, leads civil litigators to spend far too much time and energy trying to psychologically manipulate their opponents into capitulating.   Another fact is that civil litigators tend to be, both by training and by nature, writers. The Curmudgeon's Guide to Practicing Law, written primarily from a litigator’s perspective,  emphasizes repeatedly the importance of taking writing ... Continue Reading

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Could Paula Deen’s Lawyers Have Prevented Her Deposition Disaster?

About two weeks ago, a deposition Paula Deen gave in the midst of an employment discrimination lawsuit became public. To say she burned her roux would be an understatement. I’ll leave to others the race and media issues: there’s plenty for us to explore as civil litigators, and much to learn from a disastrous celebrity deposition going public.   Criticism of Deen’s lawyers has already begun. Jack Chin at PrawfsBlawg concludes “Paula Deen's participation in a deposition where everyone knew that she would say the things that she said reflects such catastrophically bad judgment that it is almost inexplicable,” suggesting ... Continue Reading

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Pleading The Fifth Amendment And Adverse Inferences In Civil Litigation

Ken over at Popehat has been chronicling the implosion of Prenda Law, a law firm that, on paper, represented copyright holders (particularly of adult films) suing individuals who had shared the films online. I would not dare try to summarize Ken's comprehensive coverage, nor claim any direct knowledge of the facts, other than to point out the handful of allegations against the firm — and their tactical response — that prompted this post. Allegedly, Prenda Law’s “clients” were merely shells for the lawyers themselves (a fraud on the court), and the firm allegedly forged someone's signature on corporate documents to ... Continue Reading

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Defense Lawyer Earns A Well-Deserved Benchslap For Misguided Recusal Motion

Last week, we took a ride on the corporate defense lawyer baloney train, this week we jump on the express. Two months ago, pharmaceutical manufacturer Roche Laboratories filed a motion asking Atlantic County, New Jersey Superior Court Judge Carol E. Higbee to recuse herself from the over 7,000 Accutane cases still pending in that consolidated litigation.   The 39-page brief Roche filed in support of the motion didn’t have much substance to it, but it was met with much fanfare across the tort reform world as a bold effort to attack a judge who wasn’t sufficiently accommodating to their scorched ... Continue Reading

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Discovery Sharing By Plaintiff’s Lawyers (Or, The Dog Ate Goodyear’s Homework)

[Update, August 26, 2013: After some further bickering and litigation in the Haeger case, the Court granted the plaintiff's motion for attorney's fees, then ordered "judgment in favor Plaintiffs and against Graeme Hancock in the amount of $548,240.23 and against Basil J. Musnuff and the Goodyear Tire and Rubber Co. in the amount of $2,192,960.93."]   Over at Safety Research, Sean Kane details a recent order from the federal court in Arizona entering sanctions against Goodyear and its lawyers for concealing testing data in a tire failure case. As every product liability lawyer knows well, the concealment of evidence by ... Continue Reading

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What To Do If Your Witness Gives An Inaccurate Answer At A Deposition

On Thursday, I was on a CLE panel for the American Bar Association’s “Torts and Insurance Practice Section” annual leadership retreat at the idyllic Palm Springs, where we (two state court trial judges, one federal magistrate judge, a defense lawyer, and yours truly) discussed a mix of discovery practice. As described by the ABA TIPS website: We are also offering a Professionalism and Ethics CLE session on Thursday afternoon immediately before our Welcome Reception entitled: "Through the Looking Glass: What Lawyers Can Learn From Judges and What Judges Can Learn From Lawyers", where a distinguished panel of lawyers and judges ... Continue Reading

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