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District Court Judge Calls Out Need for Change in Discovery Culture, Imposes Sanctions

Brittany Kauffman Posted in Rule One

In a recent opinion issuing discovery sanctions, a federal district court judge in the Northern District of Iowa denounced modern discovery practice in the United States. Judge Mark W. Bennett began the opinion with a reference to Hamlet: “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.” The court went on to discuss the current state of discovery, how it is too often “mired in obstructionism,” and how such inappropriate conduct is “born of a warped view of zealous advocacy.”

The court did not lay all the blame on lawyers, recognizing that judges often ignore such conduct, thereby reinforcing and incentivizing such tactics. With that, the court sua sponte issued sanctions against defense counsel for coaching witnesses and excessive interruptions during depositions. Rather than impose a substantial monetary sanction, the court decided to impose a sanction that would have a more deterrent effect. The court ordered the defense attorneys, who work at one of the 20 largest firms in the United States, to “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 court’s commentary and sanctions serve as a reminder to litigators everywhere of the importance of cooperation in modern discovery practice.

  • Old Lawyer

    The judge surely is right that there is excessive obstructionism in discovery, but I think he’s all wet in his analysis of form objections at a deposition. If some objection is not made, the objection is waived. If a more detailed objection is required, it opens the door to specifically coaching the witness on what the problem with the question is. The nature of the objection can be sorted out, with reasons, when the case gets to trial, in the unlikely event it does. While the judge claims to go off on excessive coaching and other alleged misconduct, that’s not really reflected in the opinion. It reads like he realized he couldn’t really impose sanctions on what really got him going since everyone else recognizes form objections are better, not worse, and concocted another reason. I have no idea who the lawyer even was, but a fair reading of this seems to be that a grumpy old judge sanctioned a pretty good lawyer for 1) not being from Iowa, which in the judge’s expressed opinion has the best and most civil lawyers who never deserve sanctions, 2) protecting his record by imposing form objections. Even the sanction – requiring the lawyer to produce a training video attesting that the judge is right in his idiosyncratic opinions – reflects judicial ego and black robitis of the worse kind.