Commercial Litigation and Arbitration

Sanctions — The Perils for Parties Adopting ‛An Aggressive Litigation Posture“

There was no love lost between the parties to Novak v. Capital Mgmt. & Devel. Corp., 2007 U.S. Dist. LEXIS 29788 (D.D.C. April 24, 2007). When the plaintiff filed a supplemental response to defendants’ interrogatories that identified eleven new witnesses, and later a second supplement with eight more — all well prior to the close of discovery — the defendants filed motions to strike. The problem is, the supplemental filings were timely. There was no evidence that the plaintiffs had been abusing the process by withholding the names. The Court issued orders to show cause why Rule 11 sanctions should not issue for the defendants’ motions. The Court’s reasoning in ordering an award of attorneys' fees as a sanction bears repeating:

I certainly appreciate that there may be cases in which the supplementation disrupts the discovery schedule. In that case, the parties can do the unthinkable: talk to each other and collaborate on a reasonable solution…. Defendants did not do that here because the parties had adopted what Defendants call ‛an aggressive litigation posture.“ All one can say to that is that those who live by the sword will die by the sword. When one makes an unjustified motion rather than seeking some other solution to a problem one should not be surprised that tone has to pay for the consequences.

Accepting that sanctions were warranted, query whether Rule 11 was the appropriate power for the Court to invoke. Rule 11(d) provides that: ‛Subdivisions (a) through (c) of this rule do not apply to … motions that are subject to the provisions of Rules 26 through 37.“ The opinion is short, but it is not clear why the motions to strike discovery responses were not within this carve-out for discovery motions contained in Rule 11(d).

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