Thursday, November 5, 2009

Attorney - client dispute about discovery sanctions

Last night we spent our entire class time talking about misconduct within the limits of the adversary system and most of that time was spent talking about misconduct during the process of discovery in civil cases.

Coincidently, today I saw a related item in the Wall Street Journal law blog. The story starts by stating that discovery disputes "most of them occur most often in regard to opposing counsel, who always seem to be asking for more than you have or claiming to have less than you want" which describes the types of issues we discussed in class last night. But then the story goes on to discuss the on-going dispute between a firm and its own client over the fact that the court imposed sanctions ON THE FIRM because the client failed to disclose information during discovery.

In class, we discussed the famouse Fisons case, where the court imposed sanctions on a firm for its "gamesmanship" and attempts to avoid disclosing a "smoking gun document." In the case discussed in the Wall Street Journal, though, the firm claims it did not disclose the documents in question because the client misled the firm. The firm claims the sanctions should be paid by the client, not by the firm. Go here and here for the full story. Go here for commentary in the Legal Ethics Forum.

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