UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
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LINDSAY HUTHNANCE, )
Plaintiff, )
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v. ) Civil Action No. 06-1871 (RCL)
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DISTRICT OF COLUMBIA, et al., )
Defendants. )
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_______________________________________)
MEMORANDUM AND ORDER
I. Introduction
On the first day of trial in this case, this Court granted plaintiff’s motion to prohibit the
District from using several pieces of evidence it attempted to introduce on the eve of trial. At that
time, the Court took plaintiff’s Motion for Sanctions against the District’s counsel under
advisement. This Court has now had ample time to consider the sanctions issue. Having
reviewed the Motion for Sanctions, the District’s Opposition, plaintiff’s Reply, the record of this
case, and the applicable law at length, the Court denies plaintiff’s Motion for Sanctions for the
reasons that follow.
Huthnance’s indignation at the District is understandable. Her fourth trial date was hours
away. Her case—which she had honed and tweaked for years in preparation for this trial date—
was premised on the District’s admissions, answers to key interrogatories, and production of
certain smoking-gun documents. Both parties knew about and had relied upon these key pieces
of evidence for years, and Huthnance and this Court heard nary a peep of dissent or dispute
regarding any of them from the District at any point during the years leading up to this the fourth
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trial date. Yet, shockingly, the District decided to try to change many of these fundamental
factual predicates the Saturday evening before the Monday morning trial—without moving this
Court for leave to do so. Thus, Huthnance was forced to flitter away the critical moments leading
up to her trial date drafting a motion to shelter herself from the District’s most recent bombshell.
Huthnance might find some comfort in the fact that it could be worse; she could have
received this discovery after trial ended. See DL v. District of Columbia, No. 05-1437, 2011 WL
1770468 (D.D.C. May 9, 2011). Indeed, the District’s behavior in this case may have surprised
Huthnance, but it wouldn’t surprise anyone familiar with the District’s unique approach to the
discovery process. This sort of behavior is quickly becoming the rule for the District—not the
exception. It’s no exaggeration to say that to be on the safe side, the District’s litigation
adversaries would be well-advised not to begin preparing for trial until after it’s under way
because it’s very likely that the District will not produce key discovery until then—at the earliest.
Id.
The question before this Court today, though, isn’t whether the District’s conduct in this
case meets the Federal Rules’ standard—it clearly hasn’t. The question is whether the District’s
current counsel ought to pay the price for the District’s serious transgressions. Thus, this Court
must carefully identify that portion of the District’s intolerable discovery conduct—if any—for
which its current counsel ought to be held liable.
Drawing that distinction is made particularly difficult by another of the District’s
common practices—switching lead counsel in the months leading up to trial. District counsel
understandably point out that—to a large extent—they’re just victims of circumstance. Defs’
Opp’n to Plaintiff’s Emergency Mot. Strike Supplemental Discovery Responses and Imposition
of Sanctions (“Opp’n”) 10, Apr. 28, 2011, ECF No. 242. They can’t possibly be held responsible
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for this situation, the argument goes, because they only arrived on the scene in October and
November 2010, very late into this years-old litigation. Opp’n 2. They found themselves saddled
with the unenviable responsibility of undoing the mistakes of those who came before them.
Opp’n 10.
Huthnance concedes that this is true for the most part. Pl.’s Reply Support Mot. Sanctions
(“Reply”) 3, May 9, 2011, ECF No. 246 (“Plaintiff and her counsel accept the factual
representations made by defense counsel in the District’s opposition.”). She only holds the
District’s current counsel responsible for a few discrete aspects of the current messy situation.
First, she claims that even if they were late to the game, there was no excuse for the serious
tardiness of these discovery alterations. Reply 3. Second, she claims that the District was aware
of many of these problems two weeks before it decided to attempt these changes and thus should
have let her and this Court know about them earlier. Reply 3. Finally, she argues that to the
extent the District’s counsel was allowed to make these changes, it had to seek leave of court to
do so, and its failure on that front is sanctionable. Reply 3.
Having won her case already, Huthnance seeks only nominal sanctions, which she says
would serve the symbolic purpose of putting the District, its counsel, and others on notice that
this sort of behavior won’t be tolerated. Reply 3. Although it’s a close question, this Court
concludes that the District’s counsels’ behavior in this case doesn’t warrant even nominal
sanctions against the currently assigned counsel.
II. Legal Standard Under 28 U.S.C. § 1927
Under 28 U.S.C. § 1927, a court “may,” but need not, sanction (1) an “attorney or other
person admitted to conduct cases” in federal court (2) who “multiplies the proceedings . . .
unreasonably and vexatiously” (3) with “the excess costs, expenses and attorneys’ fees” (4)
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“reasonably incurred” by an opposing party “because of such conduct.” 28 U.S.C. § 1927 (2008).
Although a finding of bad faith is essential to the imposition of sanctions under a court’s inherent
power, the D.C. Circuit “has not yet established whether the standard [for unreasonable and
vexatious conduct under section 1927] should be ‘recklessness or the more stringent ‘bad faith.’”
La Prade v. Kidder Peapody & Co., Inc., 146 F.3d 899, 905 (D.C. Cir. 1998) (citing United
States v. Wallace, 964 F.2d 1214, 1218–19 (D.C. Cir. 1992)).
Even assuming, for the sake of argument, that recklessness is the appropriate standard,
Section 1927 may not be used as a “‘catch-all’ provision . . . for sanctioning any and all . . .
conduct courts want to discourage.” Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th
Cir. 1997). Recklessness is a “high threshold . . . and in general requires deliberate action in the
face of a known risk, the likelihood or impact of which the actor inexcusably underestimates or
ignores.” Wallace, 964 F.2d at 1219–20 (emphasis added) (internal citation omitted).
Accordingly, even under a recklessness standard, the assessment of attorneys’ fees and costs
under Section 1927 would remain “‘a power which the courts should exercise only in instances
of a serious and studied disregard for the orderly process of justice.’” Id. at 1220 (quoting
Overnite Transp. Co. v. Chi. Indus. Tire Co., 697 F.2d 789, 795 (7th Cir. 1983)).
Thus, in the only case where the D.C. Circuit has awarded Section 1927 sanctions based
on a recklessness standard, counsel had refused—both in the trial court and at several turns on
appeal—to identify the disputed facts that he contended required a trial of the case. Reliance Ins.
Co. v. Sweeney Corp., Md., 792 F.2d 1137, 1138–39 (D.C. Cir. 1986). This was the very sort of
“repeated or singularly egregious” behavior required before Section 1927 may be employed.
Wallace, 964 F.2d at 1220.
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By the same token, courts shouldn’t use Section 1927 to penalize “an attorney who might
be guilty of no more than a mistake in professional judgment.” Baker Indus. v. Cerberus, Ltd.,
764 F.2d 204, 209 (3d Cir. 1985). Courts are unanimous that unintended, inadvertent, or even
negligent conduct won’t support an assessment of fees and costs under Section 1927, no matter
how “annoying” or frustrating to the trial judge it might be. Wallace, 964 F.2d at 1219, 1220; see
also Holmes v. City of Massillon, 78 F.3d 1041, 1049 (6th Cir. 1996) (holding that to justify
Section 1927 sanction, “attorney’s misconduct, while not required to have been carried out in
bad faith, must amount to more than simple inadvertence or negligence that has frustrated the
trial judge”). Moreover, regardless of whether a bad faith or a recklessness standard applies, a
finding of “vexatiousness” under Section 1927, like a finding of litigation misconduct under a
court’s inherent power, must be supported by clear and convincing evidence. E.g., Shafii v.
British Airways, PLC, 83 F.3d 566, 571 (2d Cir. 1996). There is no such evidence in this case.
III. Analysis
Huthnance’s first and second arguments are really just two ways of saying the same
thing: the District’s counsel should have notified Huthnance and the Court of these problems
sooner. The problem with this argument is that the District’s current counsel aren’t responsible
for the mistakes that led to the need for these late changes. Instead, they discovered the mistakes
of lawyers who were on the case before them. If anyone should be held personally liable for
those mistakes, it’s the lawyers who made them. After all, the District’s prior counsel could have
prevented these problems if they had (1) not made these mistakes years ago in the first place or
(2) investigated these problems and warned the District’s new counsel of these problems when
the case was handed off to them.
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Thus, the only way to make a case for punishing the District’s current counsel for these
errors would be to show that they knew or should have known of the errors earlier. The only
evidence Huthnance produces to support that contention is that the District’s counsel says, on
page six of their Opposition, that they became suspicious of some of these problems “[i]n the
course of preparing Officers Acebal and Antonio for their testimony beginning approximately
two weeks before trial.” Opp’n 6. Huthnance argues that counsels’ failure to alert her and this
Court the moment they had an inkling something might be wrong was sanctionable misconduct.
This Court disagrees.
Huthnance cites no authority, and this Court is aware of none that obligated counsel to
notify Huthnance or the Court of a “suspicion” that something might be wrong with some of the
District’s discovery responses. It’s unclear that counsels’ decision to delay long enough to
investigate its uneasy feeling about some of prior counsels’ discovery responses was even
negligent, much less the sort of “deliberate action in the face of a known risk, the likelihood or
impact of which the actor inexcusably underestimates or ignores” that would justify sanctioning
them personally. Wallace, 964 F.2d at 1219–20 (emphasis added) (internal citation omitted).
Huthnance’s remaining argument—that this Court should sanction the District’s counsel
for failing to seek leave of court before attempting these dramatic discovery alterations—is
similarly unpersuasive. It’s true that the Rules require parties seeking to make these sorts of
changes to do so only after seeking leave of Court. Fed. R. Civ. P. 36(b). Thus, the Court would
like to discourage counsel from ignoring the rules and attempting these sorts of changes without
filing a motion. That said, the Court reiterates that it can’t use Section 1927 to sanction all
undesirable litigation behavior. Peterson, 124 F.3d at 1396. No matter how frustrating that
behavior is, unless it was “deliberate action in the face of a known risk, the likelihood or impact
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of which the actor inexcusably underestimates or ignores,” this Court may not impose Section
1927 sanctions. Wallace, 964 F.2d at 1219–20 (emphasis added) (internal citation omitted).
Here, counsel for the District couldn’t seek leave to make these changes because it only became
aware of the need for them the Saturday before the Monday morning trial. Thus, a motion would
have been futile. Indeed, drafting such a motion would have taken even more time and therefore
would have resulted in Huthnance having even less time to respond and prepare to the proposed
changes.
Obviously, one wonders whether the District’s counsel could have found out about these
problems sooner had they been more diligent. But Huthnance has neither theory nor evidence to
support such a claim. Indeed, she accepts the District’s counsel’s factual account of what
happened here, including the fact that they only found out about these problems immediately
before trial. Reply 3. Thus, this Court has no reason to doubt counsel’s contentions. Even if it
did, though, it couldn’t use Section 1927 to spur counsel on to act more quickly in rooting out
these sorts of problems. Again, Section 1927 isn’t a cure-all for courts to punish any and all non-
ideal litigation behavior. Instead, it’s reserved for “instances of a serious and studied disregard
for the orderly process of justice.’” Wallace, 964 F.2d at 1220 (quoting Overnite Transp. Co. v.
Chi. Indus. Tire Co., 697 F.2d 789, 795 (7th Cir. 1983) (emphasis added)). Although this
situation is very frustrating to this Court and to Huthnance, Section 1927 sanctions are simply
inappropriate here.
The Court pauses to note that although it holds that the District’s counsel don’t deserve
sanctions here, the District itself isn’t “off the hook” by any stretch of the imagination. This
Court has gone on the record here and elsewhere about its strong disapproval of the District’s
discovery habits. It won’t continue to beat the proverbial dead horse. Instead, it merely notes that
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the District’s behavior in this case was the symptom of a clear disease of habit that the District
must cure.
This problem will persist and recur as long as the District adheres to its habit of switching
counsel as trial approaches. The District’s current counsel were correct in their assessment of the
predicament they found themselves in, calling it “unenviable.” They’ve avoided sanctions in this
case because the Court was unconvinced that in this instance they were on notice of prior
counsel’s errors. But the District’s problematic litigation antics have ossified into what
unfortunately must be recognized as habits. Thus, the argument that saved the District’s counsel
from sanctions here—that they simply weren’t aware of prior counsel’s mistakes—will grow
weaker and weaker over time as this disappointing drama repeats. At some point, this Court will
be compelled to hold the District’s trial counsel personally responsible for this predictable
problem. Otherwise, the District will be able to flaunt the discovery rules with impunity simply
by switching counsel in the months or weeks leading up to trial. Although that tactic saves the
District’s trial counsel in this case, others in their situation in the future would be well-advised to
review the work of those who went before them carefully because this Court won’t turn a blind
eye to this dysfunctional behavior forever.
SO ORDERED.
Signed by Royce C. Lamberth, Chief Judge, on June 22, 2011.
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