[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan. J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. 29, 2023).
The first sentence of the J.C. decision is: “This case, which began in August 2021 with shocking allegations of child sexual abuse occurring nearly six decades earlier, ended with a whimper, when Plaintiff J.C. consented to the dismissal of her complaint with prejudice on July 28, 2022.” The court also described plaintiff’s attorneys’ “repeated noncompliance with the Court’s discovery orders” and a cross-motion to withdraw as counsel. After dismissal, defendant moved for discovery sanctions and the motion was in part granted.
The decision demonstrates that rules of procedure and court orders are not “helpful hints.” Instead, they are “precise rubrics that are to be read and followed….” See “I hate, hate, hate motions for sanctions,” quoting Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977).
Plaintiff J.C. had sued Mr. Zimmerman for alleged sexual abuse. The Complaint was verified by one of plaintiff’s attorneys. Defendant called it a “a brazen shakedown masquerading as a lawsuit … filed in bad faith for the improper purpose of extracting a huge payout on the threat of negative publicity.”
Discovery disputes arose shortly after the initial pretrial conference. Id. at *2-3. Plaintiff missed a discovery deadline and the court issued a cautionary order that future missed deadlines would not be tolerated.
After another missed deadline, the court issued an additional warning to plaintiff.
Of significance to Defendant’s sanctions motion, on June 1, 2022, one day after Plaintiff’s responses were submitted, Defendant produced approximately 60 emails to or from Plaintiff that he had received in the course of third-party discovery. The vast majority of the emails were exchanged with Plaintiff in the months following the filing of her initial complaint in New York State Supreme Court, and before the removal of her case to this Court. The Court has reviewed the emails, and without going into the specifics of their content, the Court agrees with the defense that they call into question the veracity of Plaintiff’s allegations in her complaint. [emphasis added]. 1Each quotation in this blog is “cleaned up,” with internal record and some other citations omitted.
After another production, defendant then alleged that plaintiff had produced “only 49 pages of documents, omitting numerous emails that defense counsel knew existed because of their June 1 production.” Defendant alleged that this showed inadequate pre-suit investigation by plaintiff’s attorneys.
The court ordered a conference and plaintiff’s counsel acknowledged that he had just received the emails and texts, and also stated “we have nothing other, at this point, to provide.” The court wrote:
Defense counsel requested an order from the Court setting clear deadlines for Plaintiff’s production of the remaining discovery. While [plaintiff’s attorney] sought to explain away prior production deficiencies by noting that he was a sole practitioner with a busy trial schedule, he asserted that he was “free for the rest of the summer,” and thus would have no problem complying with Court-ordered deadlines. On the particular topic of emails, [plaintiff’s attorney] explained that he would review his client’s computer with her, and “produce every single document that I can.” (committing to also involve “someone who is properly sophisticated with computers”). The Court made plain to [plaintiff’s attorney] that “at some point, I actually have to abide by the written warnings that I give,” and, further, that “at some point, I’m just going to come to believe that you are not abiding by my orders or that your client is incapable of providing truthful responses to discovery issues.”
The court added:
I don’t know, [plaintiff’s attorney], how to tell you more strongly and more honestly that I am disappointed and dissatisfied with the productions that have been made and with your and your client’s conduct in discovery. I leave it at that. You’ve had every warning. You’ve had it oral, you’ve had it written, you don’t need me to repeat it again. For the love of God, produce these materials because you understand the consequences if you don’t. That’s all I’m going to say on the subject. [emphasis added].
That oral admonition was followed by a written order.
The Court made plain to [plaintiff’s attorney] that “at some point, I actually have to abide by the written warnings that I give,” and, further, that “at some point, I’m just going to come to believe that you are not abiding by my orders or that your client is incapable of providing truthful responses to discovery issues.”
Three days before the next deadline, plaintiff’s counsel wrote that he had been discharged by plaintiff. Defendant responded that plaintiff had failed to follow the withdrawal rules.
The court then held a conference.
The Court set the tone at the outset of the July 28 conference, making clear to Plaintiff’s Attorneys that it did not believe that they had been discharged, that it recalled the commitments made and deadlines set just a few days earlier, and that it did not appreciate feeling as though it had been “played.” [emphasis added].
Id. at *5. Plaintiff’s counsel asserted that plaintiff had not been responsive to requests for information. Id. at * 5 and n. 6. Defense counsel responded that the defense had been hampered.
Defense counsel offered a protocol that addressed the Attorneys’ withdrawal and the continuation of the case, one that included sanctions on Plaintiff and her Attorneys, as well as a forensic examination of Plaintiff’s devices. More troublingly, defense counsel theorized that the Attorneys had deliberately refrained from discharging their discovery obligations in this case (in terms of both gathering and producing discovery) because “if they did it would blow a gaping hole in their client’s case. So they slipped out the back rather than accept and assume responsib[ility] for two things: a violation of the order and this lawsuit, in the first instance.” [Plaintiff’s attorney] then took a turn throwing his client under the proverbial bus, musing as to his lack of knowledge of any spoliation, his efforts at compliance with the Court’s discovery orders, and his shared “frustration” with his client. [emphasis added].
At that point, a bombshell was dropped:
After consulting with Plaintiff during a recess in the proceedings, [plaintiff’s attorney] advised the Court and Defendant that Plaintiff sought to withdraw her complaint with prejudice. [emphasis added].
A court allocution of plaintiff regarding her withdrawal followed. As the proceeding concluded, the Court gave Defendant one week to consider whether he wished to pursue sanctions and dismissed the case with prejudice.
Defendant then moved for sanctions under Fed.R.Civ.P. 37(b)(2)(A). The court wrote:
“Disciplinary sanctions under Rule 37 are intended to serve three purposes. First, they ensure that a party will not benefit from its own failure to comply. Second, they are specific deterrents and seek to obtain compliance with the particular order issued. Third, they are intended to serve a general deterrent effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault.”
It added:
In several respects, Defendant’s motion for sanctions is unusual. For starters, it is brought only against Plaintiff’s Attorneys, and not against Plaintiff herself, even though the record suggests that a portion of the Attorneys’ noncompliance may be attributable to Plaintiff. The Second Circuit recently confirmed, however, that “[b]oth logic and the text of Rule 37(b)(2)(C) dictate that a court may impose sanctions in a targeted way against the actors whom it identifies as responsible for misconduct, whether those be parties, their attorneys, or both.” Kyros L. P.C. v. World Wrestling Ent., Inc., 78 F.4th 532, 546 (2d Cir. 2023). The Court imagines that Defendant’s decision not to pursue sanctions against Plaintiff is a kindness to her, and the Court appreciates it as such. [emphasis added].
Because the case had already been dismissed, the court looked to monetary sanctions. It noted that defendant had been prejudiced and wrote that:
Plaintiff and her Attorneys lobbed heinous accusations of sexual abuse at Defendant, prompting widespread news coverage of her lawsuit. And yet Plaintiff refrained from producing nearly all of her responsive materials in discovery, and what evidence the Court has seen thus far undermines Plaintiff’s allegations. Quite apart from the obvious reputational harm, Defendant has been forced to expend substantial sums of money in litigation defense costs. Finally, the Court recognizes that Rule 37(b) has both specific and general deterrence functions, in service of its ultimate goal of promoting compliance with court orders.
Id. at *8 (emphasis added).
The court next provided a detailed explanation of its decision to sanction plaintiff’s two attorneys. Id. at *9-10. The following points seem to be salient:
- “[M]ore than a month after Plaintiff’s discovery responses were due, and after several failed promises to comply were made by her Attorneys — the Court explicitly ordered Plaintiff and her counsel to serve Plaintiff’s responses….”
- One day later, it became clear that plaintiff’s attorney’s “initial representations to the Court about ESI had been incorrect, and that at the very least, there were numerous responsive emails in the possession, custody, and control of Plaintiff. And yet Plaintiff’s Attorneys made no inquiry of their client for nearly two months, despite the Court’s May 24 Order….”
- “Having blown past the Court’s May 30 deadline, and having acknowledged their heretofore inadequate compliance with the Court’s discovery orders, Plaintiff’s Attorneys committed to making a substantial completion of the document production to defense counsel by June 30, 2022. Even then, as their 49-page production attests, Plaintiff’s Attorneys made no effort to review Plaintiff’s accounts for responsive emails or texts, and as such continued to be in violation of the Court’s May 24 Order.”
- Subsequently, “Plaintiff’s Attorneys acknowledged the shortcomings in their compliance with Court orders, but no real progress was made. After and as a result of the July 15 conference, the Attorneys committed to completing the production of Plaintiff’s emails within one week. As the parties and their counsel know all too well, that never happened.”
- “At least two depositions were conducted for which defense counsel lacked the relevant documents.”
The court found that the attorneys’ non-compliance was willful. Id. at *10. It wrote that “the procedural history of this case makes clear that the Attorneys’ noncompliance with the Court’s orders persisted over a period of weeks, if not months, in the face of numerous warnings from the Court.”
The court determined that the attorneys’ defenses “about the press of business or the comparative size of the parties’ legal teams fall flat, insofar as Plaintiff’s Attorneys voluntarily took on this concededly headline-grabbing representation.”
Sanctions were imposed under Fed.R.Civ.P. 37(b), after the court analyzed carefully the appropriate sanction. Id. at *11, passim. In reducing the amount of the sanction, the court wrote that:
The Attorneys’ noncompliance with the Court’s discovery orders, while significant, was comparatively short-lived. The lawsuit against Defendant has been dismissed, which of course was Defendant’s principal objective. And while the Attorneys’ brief in opposition to Defendant’s sanctions motion outrageously argues that “the simple fact of the matter is that nothing has been established to prove Defendant’s innocence or his alibi defense”, this Court’s review of the record discloses nothing to support Plaintiff’s claims of abuse, and a fair amount of evidence to undermine them. On that point, it cannot seriously be disputed that Plaintiff is a troubled woman, and she has the Court’s sympathy. The Court observed firsthand the challenges that Plaintiff posed as a client, and is confident that Plaintiff’s Attorneys’ noncompliance is at least partly attributable to her. While it might have behooved everyone in this litigation for Plaintiff’s Attorneys to have conducted a more robust pre-suit investigation, or to have ensured ex ante that Plaintiff understood and was willing to comply with her discovery obligations, that is beyond the scope of this Rule 37(b) motion. [emphasis added].
Many lessons could be learned from this decision. “Data mapping” is an important technique and it does not appear to have been done by plaintiff’s counsel. For some blogs on the importance of data mapping, see ESI 101: Don’t Spoliate Evidence That’s Been Photographed, Book Review: Any Ship Can Be a Minesweeper – – – Once, and Craig Ball, A Bit About Data Mapping | Ball in your Court (craigball.net)(Sep. 23, 2011).
In Craig’s well-chosen words:
The duty to identify ESI is the most encompassing obligation in e-discovery. Think about it: You can’t act to preserve sources you haven’t found. You certainly can’t collect, review or produce them. The Federal Rules of Civil Procedure expressly impose a duty to identify all potentially responsive sources of information deemed “not reasonably accessible.” So even if you won’t search potentially responsive ESI, you’re bound to identify it.
A “data map” might be better termed an “Information Inventory.” It’s very much like the inventories that retail merchants undertake to know what’s on their shelves by description, quantity, location and value.
Care in what is represented the a court, and compliance with milestones, are also obviously significant.
Author
Notes
- 1Each quotation in this blog is “cleaned up,” with internal record and some other citations omitted.