Tuesday, March 31, 2009

Judge disqualified after sharp exchange with attorney

Prof. Jonathan Turley reports today about a case in which the Eighth Circuit Court of Appeals which removed Judge Dean Whipple of the Western District in Kansas City after the judge insists that he was pushed over the edge by a lawyer's conduct.

Apparently, the judge had ordered the plaintiffs to produce some documents and tape recordings four different times. The lawyer ignored the orders and when confronted by the judge he played dumb. Prof. Turley reports what followed this way: "Judge Whipple demanded to know if Starrett [the lawyer] had turned over the 58 documents. “To them?” Starrett responded. Whipple responded, “Well, hell yes. Why would you ask a question like that? Hell, yes, to the defendant.” Whipple then cut off Starett and said in part, “I kept telling you to produce stuff, expert stuff. You ducked. You wove … .You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents.” When Starrett insisted that the court had not ordered the documents to be turned over, Whipple exclaimed “That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process.” He accused Barazi of lying and added, “What a disgrace to the legal system in the Western District of Missouri … .We’re done. We’re done, done, done.”

The Court of Appeals for the 8th Circuitcriticized both parties for provoking Judge Whipple, but, in a 2-1 decision, found that the transcripts “reflect a sufficiently high degree of antagonism to require reassignment of the case on remand. The court, however, expressed sympathy for the lower court and stated that it was not “blind to the course of conduct that triggered the court’s frustration.”

I would have voted with the dissenting judge. Discovery abuse is a dirty little secret in our profession. I have been a witness to a lot of it and it just does not look like courts do enough to control it. Many lawyers engage in this type of conduct precisely because they know they can get away with it. Judges need to take control and put an end to it. If I had been the judge in the case, the only thing I would have done differently is that I would have given the attorney an ultimatum: either the documents are on my desk by the end of the day or the case is dismissed. If they could not produce that's not my problem. They had had 4 orders issued ordering them to produce already. I also would have imposed sanctions and ordered the attorney to pay the costs the other party incurred in trying to get access to the documents. Enough is enough.

For the opinion, click here. For the full story, click here.

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