Monday, February 12, 2007

Fifth Circuit Affirms Sanctions Against AUSA for Abusive Discovery Behavior

Posted by Alan Childress

On Friday, the U.S. Court of Appeals for Fifth Circuit, in an unpublished opinion, let stand an "abuse of discovery" sanctions order against an Assistant U.S. Attorney (while reversing as to another because that lawyer was home injured and not really involved).  The order was modified to make the attorney pay the court, not the plaintiff.  Such judicial oversight of litigants' out-of-court behavior 161849_29189064_1 relates somewhat to the Seventh Circuit's recent and more blogfamous imposition of sanctions against private lawyers doing inappropriate deposition deeds. 

There is a good synopsis of the Fifth Circuit decision [Hat tip to Jane Hicks] authored by appellate litigator Robert McKnight, who permitted me to quote his summary from the Fifth Circuit Civil News resource [a very useful publication I have used countless times in print form--it now has an online daily service].  Bob's summary is below the fold...

The Civil News reports:

         The Court also released this notable unpublished opinion: Sample v. Miles, No. 05-50624 (5th Cir. Feb. 9, 2007) (Jolly, Higginbotham and Dennis) (per curiam; unpublished): After the district court ruled for the defendant in a bench trial of a federal prisoner’s claim against prison officials, it sanctioned two assistant United States attorneys $500 jointly and severally, payable to the plaintiff, for abuse of discovery. The central problem was "defendants’ attorney, not defendants, signing the interrogatories, leading to inconsistent statements at a possibly unnecessary trial." Holding: Sanction reversed as to one attorney. Though he remained counsel of record when some abuse occurred, during that time he was recovering from a serious injury and had no involvement with the case. His "delay in officially withdrawing is understandable as an administrative matter, and [he] cannot be held personally responsible for acts to which he had no connection or exercised no oversight." The other AUSA, though she also was not the lawyer who improperly vouched for the interrogatory responses, "was heavily involved during trial preparation and trial itself and was, therefore, responsible for preparing witnesses and ensuring that their testimony would cohere with their earlier statements." The district court should not have ordered the sanction paid to the plaintiff. He "suffered some disadvantage – albeit, not much, it seems, given his penchant, facility, and time for litigation – [but] the purposes behind the sanctions would be better served if the money were to go to the court itself." (Appealed from W.D. Texas;

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