I write a lot about lawyers doing dumb things in civil litigation. Sometimes they’re coaching witnesses at a depositions, sometimes they’re citing dozens of cases for no reason, and sometimes they’re disrespecting the court by hurling insults at their opposing party.
Thus, as soon as I saw the lede to this article, I knew I had a post in the works:
Call it judicial jujitsu in a case over a martial arts bear. A plaintiff who claims DreamWorks and Paramount infringed his copyrights in their Kung Fu Panda movies has asked the court to sanction the defendants for improper investigation tactics, but his opponents want the case dropped because he skipped a deposition.
After law students graduate, there are a variety of legal fields in which they can practice. Most don’t put them anywhere near a courtroom. Two fields, criminal defense and family law, toss them into courtrooms immediately. Personal injury tosses them into the courtroom quickly, too, sometimes for trials, but far more often to argue discovery motions. Grab a random first-year associate at a personal injury law firm (plaintiff’s side or defense side, doesn’t matter) and ask him or her what they’re doing: “I have a discovery hearing.”
Even if one of the older lawyers doesn’t tell you right off the bat, personal injury associates going to endless discovery court motions — where they can observe others winning and losing motions — quickly learn a few things, like:
- Judges don’t like discovery court much in the first place.
- Judges don’t like long discovery motions; the issues are usually simple and so the briefs should be, too.
- Judges rarely grant sanctions and, when they do, it’s usually a simple monetary fine rather than an order affecting the merits of the case.
- Judges hate to referee squabbles among counsel.
In 2005, when changes to sanctions rules were being discussed, the Federal Judicial Center surveyed federal judges on a couple Rule 11 issues. Take a look at how strongly federal judges dislike entering sanctions:
85% strongly or moderately support Rule 11’s safe harbor provision;
91% oppose the proposed requirement that sanctions be imposed for every Rule 11 violation;
84% disagree with the proposition that an award of attorney fees should be mandatory for every Rule 11 violation;
Do you see where this is going? Of course you do. Sanctions for “improper investigation tactics?” Dismissal because plaintiff “skipped a deposition?”
Not gonna happen.
Sure, Rule 37(d) does indeed make sanctions available if “a party or a party’s officer, director, or managing agent … fails, after being served with proper notice, to appear for that person’s deposition.” And the court has “inherent power” to sanction parties and attorneys. Chambers v. Nasco, Inc., 501 U.S. 32 (1991)(“These other [sanctions] mechanisms, taken alone or together, are not substitutes for the inherent power, for that power is both broader and narrower than the other means of imposing sanctions.”). (For more on the details of sanctions, see this informative article (PDF) by Douglas Pepe of Gregory Joseph’s office.)
But the court isn’t going to do that. Not unless the “improper investigation tactics” really amount to party or witness intimidation. Not unless the party that cancelled the deposition has repeatedly refused to show up for deposition, to the point it’s obvious they’re never going to cooperate.
Apparently these important lessons skipped the white shoe lawyers at Fish & Richardson (which represents plaintiff Jayme Gordon, who claims the Kung Fu Panda movies blatantly infringed upon his Kung Fu Panda Power Works) and Loeb & Loeb (which represents defendant DreamWorks Animation SKG Inc., which claims Gordon can go pound sand). Maybe when they first started practicing they should have spent more time arguing discovery motions in low speed car accident and slip-and-fall cases and less time doing excessive document review, as those big firms are wont to make associates do for the first few years. All those lawyers signing on the brief and not one of them asked, “will this make us look like idiots for wasting the judge’s time?”
Sure enough, both motions were “DENIED WITHOUT PREJUDICE to the issue of sanctions relating to the conduct of both Parties’ Counsel during the discovery process being taken up by the court at a later time.”
I’m sure both the plaintiff and defendant saw that as a “win” because the other side lost its motion. It wasn’t. You both lost. Your lawyers cried wolf and there wasn’t one. What happens next time there’s a wolf?