Ride the Lightning

Judge Orders Biglaw Firm to Make Video Apologizing for Discovery Abuses

August 6, 2014

Congratulations to Judge Mark Bennett of the Northern District of Iowa. As Above the Law recently reported, the judge took issue with a Biglaw firm whose names rhyme with "Cones Way." Ten guesses and the first nine don't count.

In Security National Bank of Sioux City v. Abbott Laboratories, the judge said "Something is rotten, but contrary to Marcellus’s suggestion to Horatio, it’s not in Denmark. Rather, it’s in discovery in modern federal civil litigation right here in the United States."

He describes discovery this way: "Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.”

He was not happy in this case with constant objections to "form" without any explanation. Nor was he happy with what he viewed as witness coaching and excessive interruptions that transcended jurisdiction.

Unhappy judges tend to find unique ways to drive home their point. In this case, the judge ordered Jones Day (whoops, I gave away the firm) to come up with an essay in video form.

"Counsel must write and produce a training video in which Counsel, or another partner in Counsel’s firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified “form” objections, witness coaching, and excessive interruptions. The lawyer appearing 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 in the video must state that the video is being produced and distributed pursuant to a federal court’s sanction order regarding a partner in the firm, but the lawyer need not state the name of the partner, the case the sanctions arose under, or the court issuing this order. Upon completing the video, Counsel must file it with this court, under seal, for my review and approval…. Counsel need not make the video publicly available to anyone outside Counsel’s firm."

Doggone it, I was hoping to be able to share the YouTube version.

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