When a court orders you to meet and confer with opposing counsel about a discovery dispute, it requires you to do “something more than bickering with [opposing] counsel ….” That’s what a California state appeals court noted in affirming $12,600 in sanctions against a defendant represented by a large national firm. According to the opinion, a partner of the firm was uncivil, patronizing and condescending to the plaintiff’s counsel. The court cited the transcript of the meeting.
The court didn’t consider any ethics rules in making its ruling; but the case is still a reminder about professional conduct, including Model Rule 3.4(d) (failing to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party), as well as professionalism guidelines that your jurisdiction may have adopted, as my home state of Ohio has in its Lawyer’s Creed, for instance.
The sanctions came in a case alleging labor law violations, brought under California’s Private Attorney General Act. The plaintiff was seeking discovery about other former and current employees of the defendant company; she asserted that in a wage-and-hour representative action she was entitled to the identities of other possible “aggrieved employees.” The defendant refused to respond to any discovery about such employees.
In a 14-page meet and confer letter, the plaintiff explained her position. To address the defendant’s stated concerns over the privacy of other employees, she proposed an opt-out process developed through prior California case law in representative actions. The defendant responded with a two-page letter, refusing to budge.
The plaintiff filed motions to compel and requested monetary sanctions; the defendant’s response relied heavily on a case that on its face supported its position, but which had been de-published and lacked any precedential effect.
Before ruling on the motions to compel, the court ordered the lawyers to meet and confer, and that’s where things got hot, “quickly [becoming] contentious,” as the court said.
A contentious meeting
During the meeting, defense counsel said that opposing counsel’s arguments were “idiotic,” and that she had “lost it;” he interrupted her “multiple times,” and patronized her with comments like “if there’s something you don’t understand about what I’m saying, tell me so I can try to clarify it for you.” He told her that questions she asked him “made no sense,” and he “taunted” her. He refused to negotiate for even minimal discovery, although plaintiff’s counsel offered to compromise on the scope of her client’s request.
In sum, the court of appeals ruled, defense counsel “was hostile and unreasonable, and failed to display a sincere effort to resolve the discovery impasse,” and held that the trial court hadn’t abused its discretion in imposing the $12,600 in sanctions.
Just be nice
There are lots of ways lawyers have misbehaved when litigating, but discovery seems to bring out the worst behavior, whether it’s throwing coffee at opposing counsel, eye-rolling and being sarcastic at a deposition, or just objecting every two seconds to your opponent’s cross-examination, and coaching the witness. As the trial court said to defendant’s counsel here, “[Y]ou weren’t very nice to anybody at the meet and confer. So it kind of took away from your papers [i.e. the opposition to the motion].”
Let’s treat each other with respect, people. And if we don’t, there can be sanctions – against you or your client – waiting at the other end.