Outside-the-Box Discovery Sanctions Reversed for Lack of Clear Notice

Senior U.S. District Judge Mark Bennett of the Northern District of Iowa is noted for his outspoken opposition to the federal sentencing guidelines’ mandatory minimum drug sentences. In 2014, he took an equally forthright stance against perceived civil discovery abuse, issuing a remarkable sanction against a senior partner in a distinguished law firm at the close of a nine-day jury trial. 

I discussed Judge Bennett’s ruling in Security National Bank of Sioux City v. Abbott Laboratories in a recent issue of Litigation News. He identified three types of discovery abuse by counsel during her defense of two pretrial depositions: making repetitive “form” objections without explaining the specific basis for the objection (although no sanctions were imposed for that abuse); witness coaching; and excessive and unnecessary interruptions.

Judge Bennett issued sanctions under Rule 30(d)(2), which provides that “[t]he court may impose an appropriate sanction . . . on a person who impedes, delays or frustrates the fair examination of the deponent.” The sanction here: counsel was ordered to prepare a training video, to be approved by the court, discussing its opinion and counseling ways to comply with its rationale. Counsel was to disseminate the video throughout her law firm, but otherwise the video would remain confidential. Counsel and her firm quickly appealed the ruling to the U.S. Court of Appeals for the Eighth Circuit, and the order was stayed pending the outcome of the appeal.

The story garnered national headlines in the legal press, and in the interval preceding the appellate decision, Judge Bennett’s opinion was cited favorably in several cases. Underscoring its significance, four sets of prominent players were granted leave (over appellants’ objection) to file amicus briefs in the Eighth Circuit supporting Judge Bennett’s ruling: the American Association for Justice, the American Board of Trial Advocates, the Iowa Association for Justice, and distinguished practitioners Thomas Melsheimer and Stephen Susman (who lecture and write extensively about improving litigation conduct).

The Eighth Circuit’s ruling dispensed with several arguments raised by appellants. First, the court concluded that Rule 30(d)(2) sanctions may be imposed by the court on its own motion. Second, the court confirmed that the standard of review for Rule 30(d)(2) sanctions is abuse of discretion, although sua sponte sanctions by the court require that the abuse of discretion standard be applied with “particular strictness.” Third, the court acknowledged that discovery abuse “has been a topic of widespread concern in the legal community,” and that preventing such abuse “depends in part on reducing the reluctance of attorneys to seek sanctions and of judges to impose them.” 

Nevertheless, without reaching the merits, and assuming for purposes of its decision that sanctions were warranted, the court reversed Judge Bennett’s ruling without remanding for further proceedings, finding that he did not give particularized notice to appellants of the unusual sanction that he intended to impose. That deprived them of the opportunity, which due process required, to address the sanction in advance. That entitlement was especially important because the reputation of the lawyer, which could have a tangible effect on her career, was at stake.

The court’s point is well taken. Nonetheless, it is disappointing that the decision failed to address the merits of a major problem that warrants greater judicial oversight. Seldom do specific, detailed instances of alleged deposition misconduct reach the august appellate level. The briefs submitted by the amici curiae were premised on the collective sense, garnered from their experience, that discovery abuse is widespread and requires corrective action by the judiciary. Even though Judge Bennett was not reversed on the merits, how likely is it now that his acute observations will find traction as dictum in later cases?

Surely, it would have been beneficial had the Eighth Circuit addressed, on the merits, Judge Bennett’s conclusions regarding counsel’s conduct, and the efficacy of his remedy. True, counsel who appear before Judge Bennett are now on notice as to the acceptable standard of behavior in his court. Bright lines are a good thing. If the Eighth Circuit thought his conclusions were right or wrong, or that his sanction was appropriate or not, the court could have articulated a clear standard to be followed circuit-wide . . . perhaps to be adopted elsewhere as well.