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Persuading Courts to Impose Sanctions

By Douglas J. Pepe

Each state has its own sanctions powers, often modeled after those in federal court. Federal sanctions law is a tangled web. Each rule covers a limited sphere of conduct and has unique requirements, yet some rules overlap with others. Some of the most egregious conduct faced every day by courts and litigants is not covered at all. The omnipresent inherent power is both broader in scope and more circumspectly applied than the rules and can be used to fill the gaps when the rules fall short.

Rule 11. Surprisingly narrow and frequently misused, Rule 11 imposes two basic categories of duties: when presenting a paper to the court, the presenter certifies that (1) the paper is not presented for an improper purpose; and (2) reasonable inquiry was made into the factual and legal contentions made. These are not high hurdles, and the touchstone is not the ultimate merit of the arguments (unless the arguments are so entirely frivolous that the absence of factual or legal inquiry is obvious).

If you want attorney fees, Rule 11 is not the best place to start. The rule authorizes the imposition of deterrent, not compensatory, sanctions. Attorney fees are awardable only if “warranted for effective deterrence” (Rule 11(c)(4)). Other sanctions powers, like 28 U.S.C. § 1927 or the inherent power of the court, are not so limited.

If you face discovery misconduct on the part of your opponent, don’t use Rule 11. It has nothing to do with discovery. Rule 11 was amended in 1993 to make this clear. See Rule 11(d). Look instead to the discovery sanctions rules—Rules 26(g), 30(d), and 37—or, absent a governing rule, the court’s inherent power.

If you’re dealing with something other than a paper presented to the court, don’t use Rule 11. Letters exchanged between counsel are not covered. Misrepresentations in settlement discussions or communications are not covered. Oral motions, no matter how baseless, are not covered. Misconduct during trial is not covered. Your adversary can flat out lie about the law and the facts at oral argument. If your opponent is not advocating a position taken in his brief, he is free from the grip of Rule 11 (but behold the wrath of the court’s inherent power!).

If you’ve already won a point, it’s too late for Rule 11. You have to give your opponent at least 21 days to withdraw the sanctionable paper, and that’s impossible if the motion has already been decided. This stems from the “safe harbor” in Rule 11(c)(2). It requires that you serve your Rule 11 motion on your adversary, but refrain from filing it with the court for 21 days so your adversary can withdraw or correct the offending paper.

Rules 26(g), 30(d), and 37. When your opponent abuses the discovery process in one way or another, look first to Rules 26(g), 30(d), and 37 of the Federal Rules of Civil Procedure. But don’t be surprised if your adversary’s conduct isn’t expressly covered. Together or separately, these rules don’t come close to covering the full range of discovery misconduct encountered in daily practice.

Rule 26(g) is the rule to consult when dealing with many formal written discovery abuses. Only two things are covered by the rule: (1) initial and pretrial disclosures (by signing these, your opponent certifies that they are true and correct when signed), and (2) formal written discovery requests, responses, and objections (by signing these, your opponent certifies that they are grounded in law, not served for an improper purpose, and are not unreasonable or unduly burdensome).

Rule 26(g) is the written discovery counterpart to Rule 11, and it was modeled after the 1983 version of Rule 11. Rule 11 has since been substantively amended, however, so the two rules have taken divergent paths. The differences can be significant in practice and are important to bear in mind.

For example, if your opponent advocates from initial disclosures or interrogatory responses that were reasonably believed to be true when made but, over the course of litigation, have become demonstrably false, Rule 26(g) sanctions are improper. Rule 26(g) is tested from the date of signing. Unlike the current Rule 11, later advocacy is irrelevant. That is not to say that this example demonstrates acceptable practice—your adversary should have supplemented as required under Rule 26(e) and can be sanctioned for failing to do so under Rule 37(c)(1)—but it does mean that you’ve got the wrong rule.

If your opponent does violate Rule 26(g)—for example, by serving discovery for some improper purpose—there is no opportunity to correct the error, and sanctions are mandatory. Unlike the current Rule 11, Rule 26(g) has no “safe harbor,” and the court “must impose an appropriate sanction” if there is a violation. See Rule 26(g)(3).

Rule 26(g) has no general application to the countless other ways litigants and counsel may abuse the discovery process, including improper deposition conduct, incomplete document production, spoliation of evidence, frivolous discovery motions, non-compliance with discovery orders, and refusal to provide legitimate discovery. Other rules, and the court’s inherent power, must be consulted to address this behavior.

If your opponent misbehaves in a deposition, turn to Rule 30(d). It deals with some, but not all, deposition abuses. But beware, the rule is lopsided. If you are the one asking the questions and your adversary “impedes, delays or frustrates” your examination of the witness, you can get an “appropriate sanction”—including, but not limited to, expenses and fees—for your opponent’s misbehavior. See Rule 30(d)(2).

Not so if you are defending the witness. There is no provision for an “appropriate sanction” for bad faith questioning. Rule 30(d)(3) gives you one option if your opponent asks your client harassing or improper questions: Stop the deposition and move to terminate or for a protective order. If you win, you are entitled to fees and expenses incurred in bringing the motion. See Rules 30(d)(3)(C) and 37(a)(5)(A). If you lose, your adversary is entitled to fees and expenses incurred in defending against it. See Rules 30(d)(3)(C) and 37(a)(5)(B). There is no rule-based sanction for bad faith questioning—that is the province of the court’s inherent power.

Disobedience of a court order carries potentially heavy costs. So if you’re dealing with a situation where your adversary has violated an order of the court, Rule 37(b)(2)(A) empowers the court to issue “further just orders.” Violation of a discovery order triggers Rule 37(b)(2)(C), requiring sanctions on the disobedient party or counsel for costs and fees caused by an unjustified failure to comply. The problem with Rule 37(b) lies not in the breadth of available sanctions but in the scope of its application. Most of the discovery abuses encountered in practice do not run afoul of any order.

When your adversary is playing games with disclosure, look to Rule 37(c) and (d). But not all disclosure gamesmanship is covered. Where is the rule that provides for sanctions when your adversary fails to produce documents in response to a valid document request or their production is incomplete? There isn’t one (although some courts erroneously find it in Rule 37).

However, you can move to compel production. Rule 37(a)(1) requires that you meet and confer first and certify your good faith efforts to the court. If that doesn’t kick-start your adversary, you can move to compel under Rules 37(a)(3)(B)(iv) and (a)(4), which together permit a motion to address your adversary’s incomplete disclosure. If your motion is successful, you are entitled to your costs in making the motion unless your adversary can show a justification or that you didn’t confer in good faith before bringing the motion. Once an order issues, one would think only the foolish or reprobate adversary would violate it. But if (and only if) they do, you would then be entitled to sanctions for violation of the order under Rule 37(b).

Inherent power sanctions are looking good right about now, and they may be available in this circumstance, but inherent power comes with its own set of hurdles. More on those later.

28 U.S.C. § 1927. A lawyer who “so multiplies the proceedings in any case unreasonably and vexatiously” is subject to sanctions under 28 U.S.C. § 1927. This phrase covers a broad range of dilatory litigation tactics, from the filing of duplicative complaints and baseless motions, to serving needless discovery, to persisting in a meritless argument or position, to making frivolous appeals—basically any conduct that prolongs the case and causes additional expense and delay. Section 1927 sanctions are only available against lawyers, not litigants, and the high “unreasonably and vexatiously” standard, in some circuits, requires a showing of bad faith.

If your opponent’s conduct is not covered by a rule or statute, the only place to look is the inherent power of the court. Inherent power sanctions are the quintessential gap filler of sanctions law. In the leading modern decision, Chambers v. Nasco, Inc., 501 U.S. 32 (1991), the Supreme Court made clear that the existence of a sanctioning scheme in statutes and rules does not displace the court’s inherent power to impose sanctions for bad faith conduct. Whereas rules-based sanctions “reach only certain individuals or conduct, the inherent power extends to a full range of litigation abuses” and, “at the very least . . . must continue to exist to fill in the interstices.” Id.at 46.Yet despite the breadth of the inherent power, the Supreme Court has repeatedly admonished the lower courts to exercise “restraint and discretion” in its use.

Most judges don’t like sanctions motions. They don’t relate to the merits; they reflect animosity between counsel; and they are additional work that doesn’t move the case forward. Don’t fire off a sanctions motion unless there has been egregious or repeated misconduct. But when the time does come, know the rules, demonstrate your opponent’s bad faith, show how your case was prejudiced, and ask for the right sanction. Finally, make sure you are, “like Caesar’s wife, beyond reproach.” If there is something to be said about your own conduct, your opponent will use it to maximum advantage, and the court might even say it on its own.

Keywords: Litigation, tips, sanctions, federal sanctions

Douglas J. Pepe is a partner at Gregory P. Joseph Law Offices LLC in New York City.

This article was adapted from a longer one that was published in the Winter 2010 issue of Litigation.


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