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Eighth Circuit Reassigns Judge, Reverses Dismissal of Case

By Kristine L. Roberts, Litigation News Associate Editor – June 25, 2009

The Eighth Circuit’s decision in Sentis Group, Inc. v. Shell Oil Co. [PDF] highlights the tensions among judges, lawyers, and litigants in discovery, as well as the conflict between merits-based resolution of cases and the need to ensure compliance with the rules.

Background of the Case
In Sentis Group, a divided panel of the Eighth Circuit Court of Appeals reassigned a federal judge and vacated an order of dismissal, holding that the judge’s angry remarks created an appearance of partiality. The dismissal was a sanction for alleged discovery abuses.

The plaintiffs, operators of gasoline stations, sued the oil company franchisor for $28 million, claiming fraud and breach of contract. The district court’s dismissal sanction followed protracted discovery battles. The main dispute concerned 58 documents withheld on privilege grounds, which were implicated in four separate discovery orders.

At a district court hearing, the defendants gave a lengthy presentation critical of the plaintiffs’ discovery conduct. The district judge questioned the plaintiffs about the 58 documents, and the plaintiffs acknowledged that not all had been produced. The judge responded, “Now what the hell do you not understand? You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents. That’s unbelievable.”

When the plaintiffs’ lawyer tried to interject, the judge said, “That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process.”

The Eighth Circuit vacated the order of dismissal, but not without expressing sympathy for the judge’s position, noting that the parties “provoked” him. The majority was critical of both the plaintiffs’ “evasive” behavior and the defendants’ “fanning the flames of the district court’s discontent.”

The main disagreement between the majority and the dissent was whether the court’s statements revealed a level of antagonism such that fair judgment was impossible. For the majority, the judge’s use of profanities and his conduct in court met this standard. For the dissent, “at most, the district judge vented its frustration over the Plaintiffs’ failure to abide by its discovery orders.” And while the majority questioned the dismissal sanction, the dissent found dismissal an appropriate response to the willful violation of court orders.

Appropriateness of Sanctions
Sentis Group highlights the fundamental tension in a judge determining the appropriate penalty for violating a discovery order, says Andrew S. Pollis, Cleveland, OH, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee.

“The judge is in a difficult position because the ultimate question is whether the failure to follow his or her orders warrants sanctions. Yet the question is not whether there was an affront to the court, but rather was there an abuse of the system prejudicial to the administration of justice,” Pollis adds.

“The majority was concerned that personal disrespect for the judge created an unworkable situation—it became impossible to disentangle the personal from the judicial,” says Pollis.

“The majority appeared to be driven more by the result than by indicators of partiality,” counters Kent A. Lambert, New Orleans, LA, cochair of the Section’s Pretrial Practice & Discovery Committee

“The majority was evidently disappointed in the trial judge’s breach of decorum and choice of language. Yet a judge’s expressing frustration or ruling against one party in the litigation should not be enough to establish bias,” Lambert says.

Merit-Based Resolution
Pollis says that there is a strong preference for resolving cases on their merits. “While we want everyone to play by the rules, we run the risk of undermining those rules if we allow discovery sanctions to stand in place of merit-based adjudication,” observes Pollis.

It can be a reality of discovery that one side is disproportionately burdened. When a client resists complying with discovery obligations, the lawyer has an ethical dilemma, says Pollis. “On the one hand, the lawyer is required to comply with the rules, and likely wants to protect his professional reputation. On the other hand, the lawyer has an obligation to protect and represent his client,” he says.

What can the lawyer do? Lambert recommends being careful not to promise more than you can deliver, keeping the other parties apprised of your progress, and making certain to provide accurate representations. Pollis advises that lawyers communicate with their clients in writing about discovery.

Keywords: Discovery, Eight Circuit, sanctions


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