Post Process

Everything to do with E-discovery & ESI

Judge: Attorney ‘crossed the line from zealous advocate to sanctionable conduct’

Posted by rjbiii on October 7, 2007

Judge James Gardner, a district court judge in the Eastern District of Pennsylvania, declared:

In his opinion, Gardner said the defendant insurance companies and their counsel interposed a number of legally deficient general objections to discovery requests for the purpose of delaying the case and increasing costs. The judge laid most of the blame on Summers, the former lead counsel for the defense. Attorneys at Hangley Aronchick and Stevens & Lee had withdrawn as counsel last year, Fox said.

“John S. Summers … engaged in a course of conduct which constituted bad faith in this matter. I found his testimony evasive,” Gardner said. “I conclude that but for his actions, that the discovery process would have proceeded in a much more orderly and expeditious manner.

“If not for the actions of attorney Summers, there would have been no need to appoint a Special Discovery Master in this case,” he said. “Thus … it is clear that attorney Summers crossed the line from zealous advocacy to sanctionable conduct.”

The court concluded that the sole reasons for the “legally deficient objections” made by Mr. Summers was to delay discovery. An expert interviewed in the article stated that while such practice was standard trial strategy, Mr. Summers had taken it too far. Mr. Summer’s attorney in the matter, Lawrence Fox of Drinker Biddle & Reath, argued that such sanctions would “have a chilling effect on attorneys trying to protect their clients,” and that “‘a whole cottage industry’ would pop up to file sanctions motions.”

As I am not familiar with the particulars in the case, I won’t comment on the Mr. Summers’ culpability, however I do find it amusing that Mr. Fox defends the “cottage industry” of using delaying tactics in discovery while condemning another, imaginary cottage industry. Everyone on the business end of these sanctions always derides the effect on the practice of law, while ignoring the effects their own practices have had for years. Ethics laws have addressed the issue of delaying tactics, and standard practice or not, they should be greatly curtailed. That isn’t to say that parties involved in discovery shouldn’t be given time sufficient to overcome whatever procedural and technical challenges exist, but once it becomes obvious that counsel is merely objecting for the sake of delay, and is doing so in bad faith, all bets are off.

The sanctions imposed are monetary in nature, designed to cover legal costs incurred in filing motions for sanctions and costs associated with the hiring of a special discovery master. There has been a suggestion that an ethics charge might be forwarded to the appropriate bar committee. The sanctioned parties have vowed appeal the penalties.


One Response to “Judge: Attorney ‘crossed the line from zealous advocate to sanctionable conduct’”

  1. Gwen I said

    How would a defense counsel, or any one for that matter, who suspects that a judge has engaged in delay tactics to give one side an advantage, go about proving it?

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