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Court Orders ‘Outside the Box’ Sanction: Attorney Must Create Instructional Video

Wednesday, August 13, 2014

By Joan Rogers  

Aug. 5 — An attorney who engaged in obstructionist deposition conduct as defense counsel in a product liability case must make a training video on proper conduct at depositions, and then notify other litigators in her firm that the video is available to watch, the U.S. District Court for the Northern District of Iowa announced July 28.

This “outside the box” sanction is intended to deter other lawyers who might be tempted to frustrate the fair examination of witnesses at depositions by abusing “form” objections, interjecting comments that coach witnesses how to answer questions and interrupting too often, Judge Mark W. Bennett said.

The opinion describes creative sanctions that have been fashioned in several other cases to deter discovery misconduct. (See box.)

Order Will Be Appealed

Although Bennett chose not to name the sanctioned lawyer or her firm, docket entries such as the order to show cause and brief in response indicate that the target of the court's criticism is June K. Ghezzi of Jones Day's Chicago office.

Bennett wasn't entirely displeased with Ghezzi. The opinion compliments the lawyer for her skills at trial, where the jury returned a verdict in favor of Jones Day's client.

The sanction order will be appealed, Jones Day partner Daniel E. Reidy, Chicago, said in a statement e-mailed to Bloomberg BNA.

“We respectfully disagree with the Court as to whether the conduct of the partner who defended the depositions at issue deserved in any way to be sanctioned, as well as with the specific sanctions imposed by the Court,” said Reidy, who leads Jones Day's Business and Tort Litigation Practice.

Jones Day “believes it was error to order it and its partner to provide training to all of its litigating attorneys, which would teach them this Court's particular approach to certain issues, despite the existence of published rules in other courts which are diametrically opposed to the sanctioning Court's views,” Reidy said.


Other Unusual Discovery Sanctions

As examples of other “outside-the-box” discovery sanctions, Judge Mark W. Bennett cited these decisions:

▸Requiring a lawyer who filed obstructionist discovery responses to write an article explaining why the objections he asserted are improper, and submit the article to bar journals for publication. St. Paul Reins. Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 518 (N.D. Iowa 2000).

▸Ordering lawyers to pay $5 per interruption in the remaining depositions in the case. R.E. Linder Steel Erection Co. v. U.S. Fire Ins. Co., 102 F.R.D. 39, 41 (D. Md. 1983).

▸Directing lawyers who attended a deposition to sit down and share a meal together. Huggins v. Coatesville Area Sch. Dist., 2009 BL 200284, Civ. No. 07-4917 (E.D. Pa. Sept. 16, 2009).

See also Matthew L. Jarvey, Boilerplate Discovery Objections: How They Are Used, Why They Are Wrong, and What We Can Do About Them, 61 Drake L. Rev. 913, 931-36 (2013) (suggesting ways to beef up sanctions for discovery misconduct, such as “wall of shame” that lists names of sanctioned lawyers on bar association's or ethics committee's website).


Movie-Making, the Court's Way

The court ordered Ghezzi to write and produce a training video in which she or another partner in the firm appears and states that the video is being made and distributed due to a federal court's sanction order regarding a partner in the firm.

Bennett gave detailed instructions about the video and its distribution within the firm:

  •  The lawyer in the video must explain the holding and rationale of Bennett's opinion, including the impropriety of unspecified “form” objections, witness coaching and excessive interruptions.
  •  The video must provide specific steps for lawyers to comply with the court's rationale in future depositions in any federal and state court.
  •  The lawyer in the video “may mention the few jurisdictions that actually require only unspecified ‘form' objections and may suggest that such objections are proper in only those jurisdictions.”
  •  The lawyer, case and court need not be identified in the video, and the video need not be made available to anyone outside the lawyer's firm.
  •  The video must be filed with the court under seal for its review and approval.
  •  If the video is approved, the lawyer must send an e-mail to notify certain lawyers in the firm about the video and provide those lawyers access to it.
  •  The group who receives this notice and access must include all lawyers at the firm—including its branch offices worldwide—who engage in federal or state litigation or work in any practice group in which at least two lawyers have appeared in a federal or state case in the United States.
  •  The lawyer must take these steps and file an affidavit of compliance within 90 days.
  •  The order will be automatically stayed if the lawyer appeals.
  •  

    Three Wrongs

    Bennett raised the issue of imposing sanctions for the lawyer's deposition conduct sua sponte but postponed the matter until after trial.

    In defending pretrial depositions, the court said, Ghezzi (1) interposed “an astounding number” of “form” objections; (2) repeatedly objected and interjected in ways that coached the witness to give a particular answer or unnecessarily quibble with the examiner; and (3) interrupted excessively.

    The court said that because authority in some jurisdictions validates “form” objections, Ghezzi would not be sanctioned on that basis. Instead, it said, sanctions would be imposed for witness coaching and excessive interruptions.

    However, lawyers will invite sanctions if they make unspecified “form” objections in the future, Bennett warned.

    Taking Issue

    In his statement on behalf of Jones Day, Reidy said “The conduct of our partner in defending the depositions cited by the court was appropriate and violated no rule of law or of the Court.”

    “While the judge clearly has very strongly held views as to precisely how counsel should defend depositions, the conduct of the Jones Day partner in this case was well within what is permitted by various state and federal courts around the country,” he said.

    The judge should not have used a sanction order after trial to address conduct in depositions concluded before trial, particularly where plaintiff's counsel made no complaint to the court when the depositions took place, Reidy said.

    “The appropriate method for the judge to announce the applicability of his particular policies and rules as to how depositions should be defended was the use of local rule making power, which method would fairly provide guidance to lawyers as to how the Court thinks they ought to defend depositions in advance and not retroactively in the form of sanctions,” Reidy said.

    Amanda Brandy Van Wyhe and Timothy S. Bottaro of Vriezelaar, Tigges, Edgington, Bottaro, Boden & Ross LLP, Sioux City, Iowa, and Stephen C. Rathke of Lommen, Abdo, Cole, King & Stageberg P.A., Minneapolis, represented plaintiff Security National Bank of Sioux City.

    Daniel Reidy, June Ghezzi, Gabriel H. Scannapieco and Paula Sue Quist of Jones Day, Chicago, and John C. Gray and Jeff W. Wright of Heidman Law Firm LLP, Sioux City, represented defendant Abbott Laboratories.

    To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

    To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

    Full text at http://www.bloomberglaw.com/public/document/Security_National_Bank_of_Sioux_City_IA_The_v_Abbott_Laboratories/1.

    The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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