Adventures in the Law: The Gloves Are Off, And That’s Not All!

It’s not surprising that a lawsuit in New York City involved bare-knuckle litigation tactics. But attorney Jeffrey Chabrowe upped the ante by baring more than knuckles. What’s more, the bared body parts weren’t even his own!

Dr. Douglas Schottenstein sued former employees Derek Lee and Pearl Chan, claiming they had stolen millions of dollars from him. Lee and Chan, represented by Jeffrey Chabrowe, countered that Dr. Schottenstein had asked them to engage in illegal acts and that he owed them money.

In August, Jeffrey filed a motion for a stay of the proceedings. The motion included four exhibits, marked A through D, the last of which included nude or semi-nude photos of Dr. Schottenstein. Along with the motion, Jeffrey submitted a letter requesting that “Exhibits A-C … but not Exhibit D,” be filed under seal.

Why did he ask that Exhibit D, which unlike A-C contained nude or semi-nude photos, not be sealed? One guess is that just as he wanted the judge to pause the proceeding, he also wanted to give Dr. Schottenstein pause—pause to reflect on the cost in reputational terms of the public release of more embarrassing photos.

Judge Denise Cote denied Jeffrey’s motion to stay, as well as his request that Exhibit D not be sealed. She sealed all four exhibits.

The following month Jeffrey used the occasion of opposing plaintiff’s motion for summary judgment to again file more sexually explicit photos of the good doctor on the public record. The photos included some of the same nude or semi-nude photos of the doctor that had been included in Exhibit D of Jeffrey’s August filing—an exhibit the court had sealed.

Within days the doctor filed an emergency request to seal a number of the documents Jeffrey had recently filed. The judge promptly granted the request and ordered Jeffrey to show cause why he should not be sanctioned for publicly filing material—the Exhibit D photos--the court had previously sealed.

Noting that Jeffrey’s response “contained no acknowledgement that he had acted improperly,” the court issued a second show cause order “to show causes why he should not be sanctioned for twice filing on the public docket sexually suggestive photographs of the plaintiff.”

Jeffrey responded with a letter providing a splendid example of that hyper-legalistic favorite: the negative pregnant.  He was, he explained, “not aware of any per se law or rule that precludes the filing of semi-nude photos … on the public docket.” Note that he didn’t deny knowing of any authority, or even of any law or rule, precluding such filing—only any per se law or rule.

Note also that Jeffrey made no reference to the court’s explicit order sealing Exhibit D. Why the omission? Because, he explained, at a hearing on the issue, he was unaware of the court’s order. You read correctly: He claimed not to know that the court had sealed Exhibit D. (No doubt he had long wondered about the point of those missives labelled “Order” that courts are wont to issue.)

The judge was not impressed by Jeffrey’s response. She cited several authorities documenting the federal district court’s inherent power to control its own proceedings, including the power to sanction an attorney who acts in bad faith. She also pointed out that the Electronic Case Filing Rules and her Court’s Individual Practice Rules provide detailed instructions for filing material that another party may consider private or sensitive—instructions Jeffrey had chosen to ignore.

Ruling that Jeffrey had flouted the dictates of common sense, common decency, and professional responsibility and acted in bad faith, the judge issued a monetary sanction of $1,000.

She closed by urging Jeffrey to “consider how his own clients would feel if the shoe were on the other foot.”

But surely, she meant “if the pants were off the other party.”  

The case is Schottenstein v. Lee, S.D.N.Y.

An earlier version of this article mischaracterized exhibits A through C.