“Before me is Plaintiffs’ Motion for Sanctions…. I will not mince words. I hate motions for sanctions. Based on my experience for roughly 25 years as a lawyer, and now for the past five years as a judge, most such motions are without merit—a mere effort by one side to obtain a tactical advantage in a case.” ExxonMobil Global Services Co. v. Bragg-Crane Service, 2023 WL 2825691 (S.D. Tex. Mar. 8, 2023).[1]
“There are few things that I truly despise. The short list includes meatloaf, the Ohio State Buckeyes, and hangovers. It also includes motions for sanctions. It is no exaggeration to say that I hate, hate, hate motions for sanctions. ‘I am a firm believer that sanctions should rarely be imposed…. All too often, lawyers file motions for sanctions for no legitimate reason; they simply want to obtain some perceived tactical advantage in a case.’” Boshears v. Polaris Engineering, Inc., 2023 WL 2572204, at *1 (S.D. Tex. Mar. 20, 2023)(emphasis added; citation omitted), subsequent opinion, 2023 WL 2844930 (S.D. Tex. Mar. 27, 2023).[2]
The noted author, James A. McElhaney, has also written that “judges hate discovery motions.” J. McElhaney, “Making the Most of Motions; Purpose, not Plentitude, is what Matters in Pretrial Filings,” American Bar Journal, February 1996, Vol. 82, at 74, as quoted in Acushnet Co. v. Birdie Golf Ball Co., 166 F.R.D. 42, 43 (S.D. Fl. 1996).
I don’t love sanctions motions, but they serve an important role when properly used. There is a need for sanctions motions: “Speak softly and carry a big stick; you will go far.” Theodore Roosevelt, The Wisdom of Theodore Roosevelt 9 (Donald J. Davidson ed., 2003).[3]
I suggest that “hatred” is a bridge too far.
I have long argued that sanctions motions must be approached with great caution. Years ago, I pointed to the negative impact that they have on civility. What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?”(July 15, 2011); accord The Duty to Preserve & the Spoliation Doctrine in the Maryland State Courts (July 25, 2015).
I wrote that: “[S]anctions provide a civil law analog to the criminal Brady[4] attack. They permit civil litigators to prevail, not on the merits, but by attacking opposing counsel. The potential impact on civility is obvious.” M. Berman, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts,” 45 U. Balt. L. F. 129, 161-63 (2015), reprinted and updated with Alicia L. Shelton, Esq., in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Assn. 2020), 277-78.
In fact, one goal of the December 2015 Amendments to Fed.R.Civ.P. 37(e) was to cabin the sanctions doctrine.
It is certainly appropriate to write: “I do not routinely issue sanction orders. In fact, I try to avoid imposing sanctions at all costs. But enough is enough. Disobeying a district court’s discovery order is conduct that must be stopped. I am hopeful that this order, and the accompanying sanctions, will put an end to such disgraceful conduct.” Luong v. Kroger Texas L.P.,2020 WL 6060923, at *3 (S.D. Tex. Oct. 14, 2020).[5]
Further, many decisions appropriately state that sanctions motions are “disfavored.” E.g., Fletcher v. Didlake, Inc., 2021 WL 3418835, at *8 (D. Md. Aug. 5, 2021).
And, of course, no one can deny that there are many problems associated with unnecessary discovery disputes and that unfounded sanctions motions interfere with the administration of the courts and waste scarce judicial resources:
“At the outset, let me just say that in the roughly nine months I have been assigned to this case I have patiently and painstakingly reviewed the parties’ frequent submissions outlining their discovery squabbles. On numerous occasions, I have entertained oral argument, sometimes for hours on end. And, in an effort to be extra accommodating, I have even offered to be available at the drop of a hat in the event the parties needed judicial assistance in the middle of a deposition. (Note: the parties took me up on my offer twice last week.). For better or worse, this case has had more discovery fights than any case I have ever been associated with—as a lawyer for 24 years or as a judge for the last three years.
I can promise all of you that many of my colleagues on the bench would not be as accommodating. As United States District Judge Wayne Alley from the Western District of Oklahoma once wrote in an oft-quoted order:
I suppose counsel have a penumbral Constitutional right to regard each other as schmucks, but I know of no principle that justifies litigation pollution on account of their personal opinions. This case makes me lament the demise of duelling [sic]. I cannot order a duel, and thus achieve a salubrious reduction in the number of counsel to put up with.
4810 P’ship v. Nat’l Props., Inc., No. 5:91-CV-01196 (W.D. Okla. May 29, 1992). I certainly do not share all of Judge Alley’s views, but I do encourage the parties to work together to complete the needed discovery. Follow the rules. Avoid the personal attacks. And look for practical solutions to future disputes. To be clear, I am more than happy to help decide genuine discovery disputes. The problem is that I find many of the disagreements between counsel in this case to be downright silly (and that might be a tad generous).
With that out of the way, I will address the outstanding discovery issues.”
Total Safety U.S., Inc. v. Code Red Safety & Rental, LLC, 2021 WL 805554, at *1 (S.D. Tex. Mar. 3, 2021).
Recognizing the problem of imposing unnecessary motions on busy courts, I am concerned about what I perceive as dictaabout hating certain types of motions. Certainly, on the facts presented in Boshears, Acushnet, and Luong the court carefully considered the motions for sanctions and then determined that sanctions were appropriate and necessary. And, the court generously made itself available in Total Safety, considered the motions, and directed the parties to cooperate.
However, even in circumstances where a sanctions motion is appropriate, attorneys may be chilled by hyperbolic antagonism directed at sanctions motions. They may forego bringing even well-grounded sanctions motions if they know that the motion is hated. That may encourage or reward the mirror image of unfounded motions – – obstructionist conduct. I suggest that obstructionist discovery responses is of at least equal concern.
The federal and Maryland Rules provide for sanctions motions. For example, Fed.R.Civ.P 37 addresses failures to make disclosures or to cooperate and sanctions. Under subsection (a)(3)(A), a motion to compel disclosure under Rule 26(a) can seek “appropriate sanctions.” Subsection (b) applies to sanctions for failure to comply with a court order. Subsection(c)(1) provides for sanctions for certain failures to disclose regarding witnesses. Subsection (d) provides for sanctions for failing to respond to discovery. Subsection (e) addresses ESI sanctions. Further, the 1970 Advisory Committee Note encourages appropriate sanctions, stating that: “It appears that the courts do not utilize the most important available sanction to deter abusive resort to the judiciary.”
Calling balls and strikes is a judicial duty.
Maryland’s Rules Governing the Performance of Judicial Duties state that: “A judge shall uphold and apply the law and shall perform all duties of judicial office impartially and fairly.” Md. Rule 18-102.2(a). Comment [2] adds that: “Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”[6]
Md. Rule 18-102.7 is titled “Responsibility to Decide” and it adds that: “A judge shall hear and decide matters assigned to the judge unless recusal is appropriate.” Md. Rule 18-100.4 states that an “impartial judiciary” that “will interpret and apply the law that governs our society is indispensable to our system of justice.”
In an admittedly different context, the Supreme Court wrote that: “We have often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)(addressing federal jurisdiction and the abstention doctrine, not a motion for sanctions).
To be clear, I do not imply that any of the cited decisions would violate any of those rules, even if the Maryland Rules were applicable, and they are not. In each case, the court engaged in a thorough, fair, and comprehensive analysis of the motion.
My point in this blog is that the Federal Rules of Civil Procedure provide for sanctions motions for good reason. They should be viewed like any other motion. After all, there are a lot of “thin” Rule 12(b)(6) motions and Rule 56 motions that involve obvious genuine disputes of material fact. Sanctions motions are not the only type that are overused.
If a litigant makes an improper use of that, or any other tool, the Rules provide remedies.[7]
“The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship.”
“The Maryland Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.”
Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977).
The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.” Colonial Carpets, 36 Md. App. at 584-85, 374 A.2d at 421.
In the District of Maryland, Local Rule 104.8 sets out a mechanism for moving to compel:
“Local Rule 104.8 provides that, when a response to a request for production of documents has been served, a party dissatisfied with the response must serve a motion to compel on the responding party (but not file the motion with the court) within 20 days of receipt of the response. The responding party then has 14 days to serve the propounding party with a memorandum in opposition, after which the propounding party has 11 days in which to file [sic – serve] a reply memorandum. If this exchange of memoranda does not resolve the dispute, counsel must [then] confer with one another in accordance with Local Rule 104.7 in a further effort to resolve the dispute. If unsuccessful, the moving party may then file a certificate with the court attesting to having held the conference required by Local Rule 104.7, along with the motion to compel, the opposition memorandum and any reply. Local Rule 104.8.”
Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 655 (D. Md. 1997)(emphasis added). Thus, a sanctions motion must be fully briefed and then discussed before it can be filed.
There are other novel approaches. In one case, the Court ordered that: “If the parties cannot resolve their disputes on their own, then, to facilitate and expedite the Court’s resolution of any remaining discovery disputes, the parties shall adhere to the following less-formal approach to the exchange required by Local Rule 104.8. Plaintiff’s counsel will create a four-column spreadsheet in Word format. In the first column, Plaintiff’s counsel will list the number of each disputed interrogatory or document request. In the second column, he will briefly (in 100 words or less) explain the relevance of the interrogatory or documents requested by reference to a claim or defense that is pending, and identify what she contends has not been produced. In the third column, Defense counsel will respond briefly (in 100 words or less) to Plaintiff’s comments…. Each contested interrogatory, document production request, or subpoena will have a separate line in the spreadsheet…. To complete the spreadsheet, Plaintiff’s counsel will fill in the first and second columns for each disputed discovery request and e-mail the document to Defense counsel. Defense counsel will fill in the third column and e-mail the document to Plaintiff’s counsel within fourteen (14) days of receiving Plaintiff’s e-mail. Once Plaintiff receives Defendant’s e-mailed response, Plaintiff shall, within seven (7) days, e-mail” the summarized dispute to the Court. Anderson v. Reliance Standard Life Ins. Co., 2011 WL 4828891, at *3 (D. Md. Oct. 11, 2011)
Sanctions motions are sometimes wasteful, often justifiable, and: “The days when the requesting party can expect to ‘get it all’ and the producing party to produce whatever they feel like producing are long gone.” Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228, 245 (D. Md. 2005).
An appropriate sanctions motion may be one appropriate tool to achieve the goal of Rule 1 – the just, speedy, and inexpensive resolution of every action.
[1] The comment is dicta. Immediately after the quoted phrase, the ExxonMobil court wrote: “Not so here. Plaintiffs’ motion is meritorious. Defendants have made a mockery of the discovery process. I have repeatedly issued discovery orders that have promptly been ignored…. I will not belabor the point. Let me simply say that the conduct displayed thus far by Defendants in connection with the discovery process has been atrocious…. Defendants’ conduct warrants sanctions. This is not something I do rashly. In my 1,839 days on the bench, I have issued sanctions only once before.”
[2] Again, the comment is dicta. Immediately after the quoted text, the Boshears court wrote “[t]hat is not the situation here.” It added: “As a result of Boshears’s flagrant disregard for the discovery process and my discovery-related orders, Polaris has filed a Motion for Contempt and for Sanctions…. Although I certainly could write pages and pages about how Boshears’s attorney has made a mockery of the discovery process, I will keep my discussion short.”
[3] As quoted in John E. Motylinski, “E-Discovery Realpolitik: Why Rule 37(e) Must Embrace Sanctions,” 2015 U. Ill. L. Rev. 1605, 1643 (2015).
[4] Brady v. Maryland, 373 U.S. 83 (1963).
[5] In Luong, the court described egregious misconduct, such as: “To top things off, Plaintiff’s counsel failed to appear at the designated time for the October 13, 2020, oral hearing. That’s right. They just decided not to show. Ten minutes after the hearing started, I had to pull out my cell phone, call the office of Plaintiff’s counsel and get passed around like a hot potato before, finally, lawyer [name omitted] picked up the line. He had no explanation for his failure to comply with this Court’s multiple orders. None at all.”
[6] As noted above, that is what the courts did in each cited decision – they applied the law.
[7] For one example of an available remedy for unsupportable sanctions motions, see the discussion of Fed.R.Civ.P. 26(g) in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 357 (D. Md. 2008). “The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive—to the point of pricing litigants out of court.” Id. at 359. If discovery is not properly conducted, “the judge is expected to impose appropriate sanctions to punish and deter.” Id. at 360.
