Discovery Sanctions - Law Review


The Honorable Claudia Rickert Isom, Circuit Court Judge, 13th Judicial Circuit, Hillsborough County, Florida


Professionalism and Litigation Ethics, 28 STETSON L. REV. 323, 324 (1998)

Professionalism and Litigation Ethics
28-2, ISOM, Professionalism and Litigati[...]
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28 Stetson L. Rev. 323, Westlaw
28 STETSON L. REV. 323, Westlaw.pdf
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Problems with the Florida Court System

This short law review by Judge Isom shows some of what is wrong with the Florida courts, and the intractable nature of the problems.


Judge Isom begins with the naive realization that some lawyers behave badly in court.


"I soon learned that attorneys who were entirely pleasant and sociable creatures when I was counted among their numbers, assumed a much different role when advocating for litigants." (page 1, 1)


Judge Isom also concedes the relationships between judges and lawyers. She uses the example of "Harvey M." a pseudonym for a lawyer she has known a long time. "Harvey challenged me to establish my judicial prerogative and assist him in achieving goals not of his own making" Judge Isom also pointed out the role of the trial judge:


"Apparently, some attorneys feel that "cutting up" is a large part of what their clients expect them to do. When this litigious attitude begins to restrict the trial court's ability to effectively bring cases to resolution, the judge must get involved to assist the process."


Judge Isom provided an example of the uneven responses to lawyers acting badly:


"Recently, the Florida Conference of Circuit Court Judges conducted an educational seminar designed to guide circuit judges in appropriately responding to unprofessional and unethical behavior. Various scenarios were presented on video, after which the judges voted on what they felt would be the appropriate court response. A surprising number of judges voted to impose sanctions or report unethical behavior to the Florida Bar Grievance Section. However, the most common response was to do nothing or to privately counsel the offending attorney."


Judge Isom also noted the reason: Judges are elected officials and fear retribution from lawyers.


"Perhaps the perceived backlash of cracking down on unprofessional behavior is unrealistic for Florida's circuit judges who are elected officials. However, that perception shapes the judicial response, even when responding theoretically at a seminar."


This shows the level of control lawyers have over the courts and judges through campaign contributions, committees formed to support a judge for election, or organize opposition to a judge whom the lawyers view as a "problem". Lawyers also seek to control the JNC process. Florida judges are also subject to performance review by lawyers through the Confidential Judicial Feedback form which began in 1998 when this law review was written.


Judge Isom also noted how Florida’s appellate process is compromised:


"The Joint Committee of the Trial Lawyers Section of the Florida Bar and the Conferences of Circuit and County Court Judges' 1998 Handbook on Discovery Practice admonishes trial judges to fully appreciate their broad powers to end discovery abuses and the 1998 Handbook reassuringly states that the appellate courts will sustain the trial court's authority if it is exercised in a procedurally correct manner."


In other words, if a judge sanctions a litigant for discovery matters, the appellate court will "sustain the trail court’s authority" and the appeal becomes a forgone conclusion.


The appeal process becomes a farce when cases are not considered on the merits and are just rubber-stamped trial court decisions. It is an open secret. The 2DCA has about 6,000 appeals a year and most have no written opinion (per curium affirmed) and therefore not appealable to the Fla. Supreme Court. With unfair decisions at the trial level, and a forgone conclusion on appeal, what’s the point?


Judge Isom wrote how she coddled "Harvey" rather than sanction him. Is this disparate treatment fair to other litigants, both opposing and in other cases?


"Harvey quickly established his reputation, not as a fellow member of my legal community, but as a problematic litigator whose behavior had to be controlled and modified by court order for the legal process to smoothly progress…Cases involving Harvey were, by necessity, intensely case managed."


Judge Isom wrote that "Harvey’s" misconduct made her a better judge:


"In Harvey's case, extreme tools — reporting Harvey to the Florida Bar, striking responses, striking witnesses, imposing financial sanctions, and conducting contempt hearings — were never implicated. What did happen was that Harvey trained me to be a better judge by showing me how, in a nonconfrontational manner, I could effectively case manage Harvey and similar counsel without having to take off the gloves."


In my lawsuit where Judge Isom presided she did not afford me the consideration given to "Harvey". Judge Isom paved the way for Judge Barton to award $11,550 in sanctions against me.




The Honorable James M. Barton, II, Circuit Court Judge, 13th Judicial Circuit, Hillsborough County, Florida

Extreme Sanctions, $11,550 - Discovery & 57.105, FS

Order Determining Amount of Sanctions
Excessive punishment, against Art. I Sec. 17, Fla. Const.
2008, 03-27-08, ORDER DETERMINING AMOUNT[...]
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Order, Final Judgment, $11,500
Excessive punishment, against Art. I Sec. 17, Fla. Const.
2008, 03-27-08, Final Judgment Hillsboro[...]
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Transcript, hearing on attorney's fees Judge Barton
Excessive punishment, against Art. I Sec. 17, Fla. Const.
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Transcript, hearing May 5, 2010 Judge Barton
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UPDATE: May 21, 2010

Is the Second District Court of Appeals truly independent? Perhaps not if circuit court judges know most of the appellate judges, sit on the 2DCA as associate judges, clerked with the appellate court, developed relationships with the appellate judges, who in turn rule on the circuit court/associate judge’s trial court decisions.

This is what Hillsborough County Circuit Court Judge/2DCA Associate Judge James M. Barton, II stated on the record May 5, 2010:

(Transcript, May 5, 2010, page 57, beginning line 5)

5 MR. GILLESPIE: And that is fine, Judge. But
6 Judge Isom's Law Review addressed the appellate
7 process. As she said that for the most part, the
8 appellate process will reaffirm the trial court's
9 authority; no mention of the merits.
10 And in the 2nd District Court of Appeal gets
11 over six thousand appeals on annual basis. Most of
12 them have no written opinion. "No written opinion"
13 means no appeal to the Supreme Court. For all of
14 those cases with no written opinion, it's
15 essentially a rubber stamp.

16 THE COURT: Well, you may legitimately feel
17 that way. But knowing the judges, most of them, on
18 the 2nd District Court of Appeal and having sat on
19 the 2nd District Court of Appeal as an associate
20 judge, I can tell you that what might appear to be
21 a rubber stamp involves countless hours of
22 reviewing transcripts and files and records to
23 determine whether a trial court opinion should be
24 per curium affirmed without any opinion, which
25 looks like it's three words, but it involves a lot

(continued, Transcript, May 5, 2010, page 58, beginning line 1)

1 of work and a lot of hours. And I know that is how
2 that court operates. You would not, because you
3 have never been on the inner workings of that
4 court. And so, I can understand how you might feel
5 way, but all I can do is say, you know, in my
6 experience being within the court, not only as an
7 associate judge but also having clerked with an
8 appellate court in the last millennium, there is a
9 lot that goes on in those cases that people just
10 never see, even where there is a very brief "per
11 curium affirmed".

Sanctions in other jurisdictions

Discovery Sanctions Lifted, But Beware
FindLaw for Legal Professionals
April 13, 2010 
by Eric Sinrod

In early 2008, a federal magistrate in San Diego ordered significant discovery sanctions to the tune of $8.5 million dollars against the plaintiff in the Qualcomm Incorporated v. Broadcom Corporation case; which deals with discovery conduct.

The magistrate found that a large quantity of documents had been suppressed from discovery. The attorneys who were sanctioned objected and a federal judge ruled that they had a due process right to defend themselves and that they should not be prevented from explaining their own conduct in the discovery process because of the attorney-client privilege.

Now more than two years later, and after apparent negative impact on some of their careers, the magistrate on remand has decided that they should not be sanctioned. Still, the magistrate's most recent order should be a warning to others about how to guide their discovery conduct.

Read more here

7th Circuit: $60,000 Sanction on Attorney for Bringing A Copyright Action

7th Circuit: $60,000 Sanction on Attorney for Bringing A Copyright Action
Copyright Litigation Blog
Monday, April 26, 2010

The United States had the "American Rule" for most of its history. In recent years, the practice of law has been practically criminalized by judges imposing financial sanctions on attorneys. Here is a case where sophisticated defense counsel gave repeated "warnings" (rather than making a Rule 11 motion), and then got a judge and a circuit court to sanction the attorney by going around Rule 11, sanctioning the attorney, giving the defendant a windfall. Here's how:

In Tillman v. Newline Cinema, 2010 WL 1452500 (7th Cir. April 13, 2010), the 7th Circuit affirmed a lower court's decision to sanction both a client and an attorney. The decision would be rather routine had the court proceeded under Rule 11 of the Federal Rules of Civil Procedure, which provides that a party seeking sanctions must first serve the person against whom sanctions are sought a copy of a motion seeking sanctions, and if the party withdraws the offending pleading, the Rule 11 sanctions motion can't be filed.

Read more here

Washington Legal Foundation
The Emerging Business Threat Of Civil ‘Death Penalty' Sanctions
By Sherman "Tiger" Joyce
September 11, 2009 (Vol. 18 No. 21)

The civil justice system's ultimate sanction is to strike a party's pleadings, which nullifies any defense a party has to a lawsuit regardless of the merits of the underlying claims. We call this sanction the "civil death penalty" because it takes away the constitutional right to defend oneself. Traditionally, this "civil death penalty" has been the sanction of last resort, reserved only for the most egregious conduct, when no other sanction will work. Such a sanction may be merited, for instance, where key evidence is intentionally destroyed that deprives the other side's right to a trial on the merits. But recently, personal injury attorneys have begun using this sanction as just another litigation tactic against civil defendants. These defendants have been threatened or hit with the "civil death penalty" sanction even when their alleged misconduct was not in bad faith and when the plaintiff was not prejudiced in any way. Read more here