Rule 37 Sanctions: 4 Purposes — Rule 30 Sanctions for Deposition Misconduct: Asking Defendant If He Wants to Apologize, Repeating It 6 Times, Demanding Yes Or No Answer, Arguing with Witness — CLE Ordered
Tajonera v. Black Elk Energy Offshore Operations, 2015 U.S. Dist. LEXIS 181998 (E.D. La. Sept. 30, 2015):
This matter is before the Court on remand from the District Judge. (Rec. doc. 686). It involves an earlier Order and Reasons issued by this Court in which sanctions were assessed against counsel for Grand Isle Shipyards ("GIS"), Robert S. Reich ("Reich"). (Rec. doc. 638). In response to that order, GIS filed an "Objection to Magistrate Judge's Order and Reasons." (Rec. doc. 645).
In an order sustaining that objection and remanding the matter for further proceedings here, the District Judge framed the issue as "whether the Magistrate Judge erred in sua sponte imposing sanctions on Reich, without first providing him notice or an opportunity to be heard." (Rec. doc. 686 at pp. 15-16).
As to the first part of the question, the District Judge found that this Court did not err in imposing sanctions sua sponte, noting that "courts may impose Rule 30(d)(2) sanctions on their own accord in order to deter ongoing and future misconduct." (Id. at p. 16). As to the second part of the question, however, [*14] i.e., whether this Court provided Reich adequate notice and opportunity to be heard regarding the sanction ultimately imposed, the District Judge found in the negative and remanded the matter with instructions to this Court to provide Reich such notice and opportunity to be heard. (Id.).
Pursuant to that Order, this Court issued a Rule to Show Cause (rec. doc. 688), directing Reich to appear and show cause:
why this Court should not impose upon him a sanction of an additional ten (10) hours of continuing legal education in 2015 over and above what he is required to attend as a member of the Louisiana bar, as a result of his conduct as set forth in detail in this Court's Order and Reasons dated March 3, 2015 ("March 2015 Order"). (Rec. doc. 638).
(Rec. doc. 688).
In the Rule to Show Cause, this Court set a briefing schedule for Reich and other parties to the case and directed that, at the hearing on the Rule, Reich be prepared to discuss and be heard on the following non-exhaustive list of issues:
(1) the propriety of this Court issuing any sanction(s) against him for the conduct described in the March 2015 Order; (2) the appropriateness and severity of the specific sanction described above; [*15] (3) whether such a sanction is authorized under the law; (4) the appropriateness of an alternative sanction; (5) every specific instance in which he or his client have been sanctioned in a Louisiana federal court in the past 15 years as a result of his conduct; and (6) the extent to which such past sanctions are relevant to the nature and/or severity of any sanction that might be assessed against him in this case, specifically as it pertains to the issue of deterrence.
Reich filed a memorandum in support of his position (rec. doc. 698), to which only Black Elk Energy Offshore Operations, L.L.C. ("Black Elk") filed a response. (Rec. doc. 705).1 As provided for in the Rule to Show Cause, Reich filed a reply memorandum. (Rec. doc. 706).
1 As Black Elk points out in its response, it was Black Elk's motion that raised the issue of Reich's deposition conduct with this Court.
The Court held a lengthy hearing on the Rule on September 23, 2015, at which Reich appeared and was represented by counsel. (Rec. doc. 709). The foregoing issues were discussed in detail. The Court has considered all of the pleadings and exhibits, including those described in the Court's earlier Order and Reasons (rec. [*16] doc. 638), the pleadings and Order associated with GIS's appeal of that Order and Reasons (rec. docs. 645, 648, 655, 686) and Reich's arguments at the hearing,2 and now rules as follows.
2 Reich himself, while present, did not address the Court directly on any of these issues, except to answer a single question posed by the Court near the end of the hearing.
I. The Initial Proceedings Leading to the Original Sanction Order
This matter originally arose via Black Elk's Motion for Protective Orders or Alternatively, an Order Establishing Deposition Limitations. (Rec. doc. 583). That motion sought certain protections concerning the length and scope of questioning in a follow-up deposition of Black Elk's CEO, John Hoffman, along with an allocation of time among the parties for the upcoming seven-hour deposition of another witness, Keith King. Black Elk's motion was based in large part on what it alleged were "harassing and argumentative deposition tactics" employed by Reich in the Hoffman deposition. (Id. at p. 6). In a minute entry issued following a February 25, 2015 hearing on the motion at which those "tactics" were discussed with Reich (rec. doc. 616), the Court ruled upon the merits of the motion, [*17] but reserved a ruling on what it found to be Reich's sanctionable deposition conduct in the Hoffman deposition.
The Court then issued its original Order and Reasons assessing sanctions against Reich for his conduct in the Hoffman deposition. (Rec. doc. 638). That conduct remains at the heart of the matter now before the Court.3 As noted from the bench at the hearing held on the original motion on February 25, 2015, this Court believed the conduct complained of in the Hoffman deposition, while not the subject of a motion in which sanctions were formally requested,4 was entirely improper and was of a type that should not be tolerated by the Court. Accordingly, the Court sanctioned Reich as described above.
3 In addition to the issues raised here regarding the Hoffman deposition, the parties have also called this Court's chambers in connection with disputes that involved Reich's conduct in other depositions in the case. In addition, Reich's conduct during discovery in this case appears to have been the subject of complaints before the District Judge, which have resulted, at least in part, in the issuance of two orders -- rec. docs. 245 and 247 -- which will be discussed in more detail below.
4 [*18] In brief, Reich makes note of the fact that none of the other parties in the case sought sanctions against him for deposition misconduct. While this is true vis-à-vis the remedies sought, Black Elk did file a motion (rec. doc. 583) seeking relief as to the continuation of the Hoffman deposition. In that motion, Black Elk very clearly placed the blame for the parties' failure to complete that deposition squarely on Reich.
II. Reich's Arguments in Response to the Rule to Show Cause
As noted, Reich, through counsel, filed a memorandum in connection with the Rule to Show Cause and followed that with a reply memorandum. (Rec. docs. 698, 706). In those briefs, Reich addressed each of the issues set forth in the Order setting the Rule. His arguments are summarized as follows:
A. The Propriety of this Court Issuing Any Sanction(s) Against Reich for the Conduct Described in the March 2015 Order
Reich suggests in brief that this Court should not have used other prior cases in which sanctions were issued against him to "supply content" to its Rule 30(d)(2) analysis and that only his conduct in this case should be at issue here. (Rec. doc. 698 at p. 3).
He further argues that "to the extent this Court did or would [*19] sanction Reich for an alleged violation of the [Louisiana] Code of Professionalism," it would be legal error to do so for two distinct reasons. First, the Code sets forth "precatory, not mandatory, goals of professional conduct," i.e., that "nothing in the Eastern District's August 1999 Order [adopting the Code] demands attorney adherence to the Code of Professionalism, nor does it warn the readers of the Order that a failure to comply with the 'elastic concepts' of these professionalism provisions could lead to sanctions." (Id. at p. 6).
Second, he argues that the phrase, "dignity, civility, courtesy and a sense of fair play," along with the very term, "professionalism," are "impermissibly vague" to an extent that should preclude their use in punishing an attorney. In this regard, he relies extensively on various writings and commentary of Professor Dane Ciolino. See, e.g., Dane S. Ciolino, Louisiana Legal Ethics: Standards and Commentary (2015); Dane S. Ciolino, Redefining Professionalism as Seeking, 49 Loy.L.Rev. 229 (2003).5
5 Professor Ciolino is the Alvin R. Christovich Professor of Law at Loyola Law School in New Orleans and the Chair of the Lawyers Disciplinary Enforcement Committee of the United States District [*20] Court for the Eastern District of Louisiana.
In addition to these arguments, Reich argues that his behavior in the Hoffman deposition simply did not violate Rule 30. He cites certain other cases involving requests for sanctions under Rule 30 to suggest that his conduct in the Hoffman deposition does not rise to the level of the sanctionable conduct in those cases, conduct that included "instructing a witness not to answer, improper coaching, excessive interruptions, . . . threats, shouts, personal attacks, lecturing witnesses or opposing counsel and caustic comments." (Rec. doc. 698 at p. 9). He also suggests that his repeated objections to the "non-responsiveness" of Hoffman's answers are not, in and of themselves, violative of Rule 30. Finally, he claims that the conduct of other lawyers in the deposition could "equally be seen to violate F.R.Civ.P. 30(d)(2)" and that is unfair for this Court to single him out for sanctions.
B. The Appropriateness and Severity of the Specific Sanction Described in the March 2015 Order
Here, Reich simply states, without any real argument in support, that the sanction imposed by this Court -- that he is "to attend an additional ten (10) hours of continuing legal education in 2015 over and above [*21] what he is required to attend as a member of the Louisiana bar, all of which must be in the area of professionalism or ethics and offered either by the Federal Bar Association or the Louisiana State Bar Association" -- is "too severe and unwarranted." (Id. at p. 12). He also requests that, if the Court were to re-impose similar sanctions, it modify its order to allow for attendance at CLEs that are "approved by," as opposed to "offered by" the two aforementioned entities. (Id.).
C. Whether Such a Sanction Is Authorized Under the Law
Reich concedes here that the District Judge, citing a recent Eighth Circuit decision,6 found that district courts possess the power to assess sanctions sua sponte and, to the extent the Fifth Circuit would agree with the Eighth Circuit's view, the imposition of additional CLE hours is "within the court's quiver of available sanctions." (Rec. doc. 698 at p. 14).
6 Sec. Nat. Bank of Sioux City, IA ex rel. JMK v. Day, 800 F.3d 936, 2015 WL 5042248 at *5 (8th Cir. 2015).
D. The Appropriateness of an Alternative Sanction
After stating that, "given the complete behavioral picture, the Court should exercise its leniency and forego sanctions," Reich suggests that, if a sanction is to be imposed, it should take the following form:
Reich would agree to participate in a seminar (and would [*22] hope Your Honor would participate) where Reich and other attorneys could pose series of questions to a "witness" in a mock deposition setting, where the "tone" and "fabric" of the questions escalates. If the Court desires, Reich would agree to be the "zealous" (some might say over-zealous) advocate, and another attorney would be posed as the consummate professional (Atticus Finch). The audience would be asked to participate and opine about the various questions with Your Honor (hopefully) weighing in on where the Court believes the right balance in questioning the "witness" lies.
(Id. at p. 15).
Moreover, Reich asks that, in considering any alternative sanctions, the Court consider the totality of his long career and both the potential damage to his reputation and damage already done to him as a result of the Court's previous order.
E. Every Specific Instance in Which [Reich] or His Client Have Been Sanctioned in a Louisiana Federal Court in the Past 15 Years as a Result of His Conduct
Responding to this issue, Reich lists the following five matters (not including this one) that fit this description:
- Landers v. Kevin Gros Offshore, L.L.C., 2009 U.S. Dist. LEXIS 65480, 2009 WL 2046587 (E.D. La. July 13, 2009) (Shushan, M.J.);
- Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 79223, 2015 WL 3796458 (E.D. La. June 18, 2015) (Morgan, J.), affirming Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 26629, 2015 WL 965976 (E.D. La. March 4, 2015) (North, M.J.);
- XL Specialty Insurance Company v. Bollinger Shipyards, Inc., 2014 U.S. Dist. LEXIS 70365, 2014 WL 2155242 (E.D. La. May 22, 2014) (Vance, J.);
- Bordelon Marine, Inc. v. F/V KENNY BOY, 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 (E.D. La. Jan. 19, 2011) (Knowles, MJ);
- Lytal Enterprises, Inc. v. Newfield Exploration Co., 2006 U.S. Dist. LEXIS 84342, 2006 WL 3366128 (E.D. La. Nov. 17, 2006) (Wilkinson, [*23] M.J.).7
7 Reich also notes one case in which sanctions were requested against him but in which the Court declined to assess them. (Id.)(citing Thomas v. Rockin D Marine Services, LLC, 2013 U.S. Dist. LEXIS 79683, 2013 WL 2459217 (E.D. La. June 6, 2013) (Roby, M.J.)).
F. The Extent to Which Such Past Sanctions Are Relevant to the Nature and/or Severity of Any Sanction that Might Be Assessed Against Him in This Case, Specifically as It Pertains to the Issue of Deterrence
Reich concedes that the "above-cited cases [in which he was sanctioned previously] might be relevant to this Court's consideration," should it be inclined to assess any sanctions. (Id. at p. 18).
III. The Relevant Law
There are numerous mechanisms by which district courts exercise sanction powers, including the Federal Rules of Civil Procedure (through Rules 11, 26, 30 and/or 37); 28 U.S.C. §1927; and the inherent power of the courts to manage their own proceedings and to control the conduct of those who appear before them. Regardless of the source, it is widely accepted that the primary purpose of sanctions is to deter frivolous litigation and ongoing and future abusive tactics. See, e.g., Fed.R.Civ.P. 30(d)(2). Sanctions seek to deter both the culpable attorney and members of the bar in general. See, e.g., Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126-27, 110 S. Ct. 456, 107 L. Ed. 2d 438 (1989) (the primary purpose of Rule 11 is deterrence, not compensation); Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir. 1988) ("the most important purpose [*24] of Rule 11 sanctions is to deter frivolous litigation and the abusive practices of attorneys"); Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse §47(A) (2d ed.) (the purpose of Rule 37 is four-fold: "(1) penalizing the culpable party or attorney; (2) deterring others from engaging in similar conduct; (3) compensating the court and other parties for the expense caused by the abusive conduct; and (4) compelling discovery"); Id. at §20 (the purpose of 28 U.S.C. §1927 is to deter unnecessary delays in litigation).
Whether a district court exercises its sanctions authority under the Federal Rules of Civil Procedure, 28 U.S.C. §1927, or its inherent power, it does so at its "broad discretion." Topalian v. Ehrman, 3 F.3d 931, 934 (5th Cir. 1993). "The discretion vested in the trial court is granted so its thoughtful exercise will carry out the educational and deterrent functions of the rule." Jennings v. Joshua I.S.D., 948 F.2d 194, 199 (5th Cir. 1991), cert. denied, 504 U.S. 956 (1992).
Because Black Elk's motion and the Rule to Show Cause both concern Reich's conduct during a deposition, that conduct is properly analyzed under Rule 30 and the cases construing that rule. This opinion pretermits whether Rule 30 allows for the imposition of sanctions sua sponte, as the District Judge has already noted that such authority is vested in the courts by Rule 30: "[C]ourts may impose Rule 30(d)(2) sanctions [*25] on their own accord in order to deter ongoing and future misconduct." (Rec. doc. 686 at p. 16) (citing Sec. Nat. Bank of Sioux City, IA ex rel. JMK v. Day, 800 F.3d 936, 2015 WL 5042248 at *5 (8th Cir. 2015)), Joe E. Estes, Discovery, 29 F.R.D. 191, 297 (1962); William W. Schwarzer, Sanctions Under the New Federal Rule 11--A Closer Look, 104 F.R.D. 181, 197 (1985).
Rule 30(c)(1) provides that "[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence...." Fed.R.Civ.P. 30(c)(1). "During the taking of a deposition the witness has, in general, the same rights and privileges as would a witness testifying in court at a trial." 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2113 (2d ed. 1994).
It is well-established -- and should be equally well-understood by federal practitioners -- that:
[a]s officers of the court, counsel are expected to conduct themselves in a professional manner during a deposition. A deposition is intended to permit discovery of information in the possession of the deponent or perpetuate the testimony of the deponent. In either case, it is to be conducted in a manner that simulates the dignified and serious atmosphere of the courtroom. Thus, the witness is placed under oath and a court reporter is present. Conduct that is not permissible in the courtroom during the questioning of a witness is ordinarily not permissible at a deposition .... [*26] A deposition is not to be used as a device to intimidate a witness or opposing counsel so as to make that person fear the trial as an experience that will be equally unpleasant, thereby motivating him to either dismiss or settle the complaint.
Bordelon Marine, Inc. v. F/V KENNY BOY, No. 09-CV-3209, 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 at *5 (E.D. La. Jan. 19, 2011)(citing Ethicon Endo--Surgery v. U.S. Surgical Corp., 160 F.R.D. 98, 99 (S.D. Ohio 1995)) (emphasis added).8
8 This should be particularly clear to Reich, as this language comes from one of the opinions in which sanctions were imposed against him.
Under Rule 30(d)(2),
[t]he court may impose an appropriate sanction--including the reasonable expenses and attorney's fees incurred by any party--on a person who impedes, delays, or frustrates the fair examination of the deponent.
Against this backdrop, the Court turns to Reich's conduct in the Hoffman deposition.
IV. Reich's Deposition Conduct
The particular exchange of which Black Elk complained in its original brief occurred well into Hoffman's deposition. It involves Reich's asking Hoffman the same improper question some seven times over four pages of transcript:
REICH: Now that you know today, having looked at the e-mails, that the decision was made by Monte Richard to go with the project that had field welding --
REICH: -- would you like to apologize to the families for the casualty [*27] and for the death of their loved ones?
TALLEY: Let me object to the form of that question. Bob, you're completely out of line.
REICH: You can answer it.
HOFFMAN: Certainly, I have sorrow in my heart as to what happened. I also have a degree of anger in my heart that Grand Isle Shipyard construction workers did not know basic rules of using plumber's plugs, about what was in the oil tanks, about talking about isolation. There was a water release that was reported in the incident investigation which would have suggested that there was no energy isolation. So, sir, I put it back to you, would Grand Isle Shipyard want to apologize to the families?
REICH: Let me object to responsiveness.
REICH: Sir, I ask you the question one more time. It's a yes or no question. Now that you know that Monte Richard made the decision to go away from flange-to-flange bolting connection and go to a connection that had hot work in the field, with that knowledge, because you told us today when you came in here that you didn't know that, now that you have that knowledge, do you want to apologize to the families for Black Elk's involvement in this casualty?
TALLEY: Let me object to the form of the question. It's also [*28] been asked and answered.
REICH: You can answer.
TALLEY: Answer it again, sir.
REICH: Yes or no?
TALLEY: And you're not limited to a yes or no despite counsel's instruction to have you answer it yes or no. The proper instruction is that you may answer a question in any way you best see fit. Mr. Reich knows that, given his 40 years of the practice of law.
REICH: Now, that's not true.
HOFFMAN: Hot work is done every day in the Gulf of Mexico and if proper procedures are followed and proper techniques are employed, hot work offshore can be done safely.
REICH: Are you finished?
REICH: Object to responsiveness. It's a simple yes or no, sir. Now that you know that, do you want to apologize or not? Does Black Elk want to apologize now that you know that the hot work that caused this explosion was mandated by Black Elk's procedure of field welds or at least --
HOFFMAN: If -- if --
REICH: -- precipitate it?
HOFFMAN: If you read --
TALLEY: Let me object to the form of the question.
REICH: Just yes or no --
TALLEY: It's been asked and --
REICH: -- and then you can answer.
TALLEY: -- answered. And once again, you're not limited to the yes or no that Mr. Reich is trying to instruct you.
HOFFMAN: If Grand [*29] Isle Shipyard would have followed the exact words and the procedure as laid out in Mr. Richard's e-mail we wouldn't be having this conversation today.
REICH: So even knowing what you know, you still don't want to apologize is what you're telling us?
TALLEY: Object to the form.
REICH: Even knowing what you know, even knowing that Black Elk is the one who chose the procedure that involved field welding, knowing that, you still don't want to apologize is what you're saying?
TALLEY: Let me object to the form of the question. It's been asked and answered, and it's a very improper question.
REICH: You can answer.
HOFFMAN: I would say that I carry a great deal of sorrow in my heart --
REICH: That's not my question. Do you want to apologize?
HOFFMAN: -- and I find it repulsive that you would suggest this all fall on Black Elk's shoulders when it is very clear, very clear to a first grader, that the technique used that day by Grand Isle workers caused the explosion. If a different technique would have been employed, welding 101 offshore in a hydrocarbon environment would have been followed, we wouldn't be having this conversation.
(Tr. at pp. 195-98).
As a threshold matter, the Court continues to believe [*30] the initial question was inappropriate, unprofessional and abusive and agrees with the statement by counsel for Black Elk in response to the question that Reich was "completely out of line" for asking it. (Id.). Having reviewed the entire Hoffman deposition transcript in light of the argument of Reich and his counsel suggesting that the question was justified, the Court simply cannot agree -- there is simply no relevance, probity or other proper purpose in posing such a question.
A substantial amount of time was devoted at the hearing to the argument that "reasonable minds might differ on the appropriateness of the [threshold] question." (Tr. at p. 15). Reich's counsel suggested the question was proper because, early in the deposition, Hoffman had answered in the negative a question posed by Plaintiff's counsel whether Hoffman believed Black Elk bore any responsibility for the casualty. According to Reich, because the witness was subsequently "made aware of" a particular email during the deposition, this laid a foundation for him to ask whether Hoffman wanted to "apologize to the families for the casualty and for the death of their loved ones."
The Court finds this explanation wholly [*31] unconvincing -- if circling back around to the question of fault or blame was actually Reich's purpose, which the Court doubts, there are far more acceptable ways of accomplishing that purpose, including, but not limited to, actually asking about fault or blame, rather than skipping straight to the more sensational and inflammatory issue of remorse or apology. Based upon this Court's review of the entire deposition transcript (including viewing it on DVD), the Court remains convinced the question was nothing more than a premeditated stunt with no legitimate objective.
It is also worth noting here (as the Court did at the hearing) that, if this single question was the only instance of problematic conduct by Reich in this deposition, the Court never would have reached the question of sanctions. The question was improper, but not so much as to be sanctionable standing alone. It did not, however, stand alone.
Unsatisfied with Hoffman's answer to the initial "apology question," Reich proceeded to ask it again -- six more times. (Id. at pp. 195-98). In doing so, he repeatedly interrupted, argued with and lectured the witness, demanding a "yes or no" answer to his question in an inappropriately aggressive tone. [*32] 9 This is a violation of Rule 30, the District Judge's April 9, 2014 Order that "counsel shall not engage in harassing or repetitive questioning" (rec. doc. 247) and the Code of Professionalism. It is also a hallmark of Reich's improper deposition technique.
9 The Court also twice viewed a DVD of the deposition and notes that during the repetitive questioning of Hoffman at this point in the deposition, Reich was clearly arguing with and interrupting Hoffman and repeatedly failed to treat the witness with "dignity, civility, courtesy and a sense of fair play," or to conduct himself in a "manner that simulates the dignified and serious atmosphere of the courtroom." Bordelon Marine, 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 at *5 (citing Ethicon Endo--Surgery v. U.S. Surgical Corp., 160 F.R.D. 98, 99 (S.D. Ohio 1995)).
In the 73 pages of transcript in which he questioned Hoffman, Reich objected to the responsiveness of an answer 22 times -- in this Court's experience a highly unusual phenomenon even in hard-fought litigation such as this. Indeed, the Court's review of these objections reveals that they are almost uniformly invalid and are simply a tool employed by Reich to set up his demands for "yes or no" answers after instructing the witness that the preceding question was a "simple" one -- almost every single time he objects [*33] to "responsiveness," Reich follows with a statement that his question is "simple" and demands a "yes or no" answer.10 This is improper, sanctionable conduct.
10 Some, but not all, examples of the linkage between the "non-responsiveness" objection and the demand for "yes or no" answers can be found in the Hoffman deposition at page 161, lines 2-9; page 161, line 23 -- page 162, line 125; page 163, lines 5-10; page 165, line 21 -- page 166, line 3; page 169, line 25 -- page 170, line 5; page 172, line 6-9; page 195, line 25 -- page 196, line 3; page 197, lines 4-7. (Rec. doc. 698-3).
The Court finds this to be a deliberate tactic employed by Reich throughout his questioning of Hoffman in furtherance of his intentionally combative deposition strategy. Reich's "attacking" style is on full display throughout his examination of Hoffman, evident not only in the foregoing exchange but in the countless number of times he lectures the witness as to the type of answer he must give and aggressively interrupts Hoffman while he attempts to answer Reich's often vague and compound questions. This conduct unquestionably delayed and impeded the fair examination of the witness, in violation of Rule 30.
The Court also must [*34] note that Reich has displayed similar conduct throughout this litigation, necessitating multiple telephone calls to this Court during depositions and at least one other discovery motion, in which his similarly harassing and argumentative conduct in the deposition of Steve Arendt was detailed and which resulted in this Court ordering that Reich was prohibited from participating in Arendt's follow-up deposition. (Rec. docs. 565 (motion) and 569 (Order)).11 For similar, if not identical reasons, the Court also prohibited Reich from participating in the follow-up deposition of Hoffman. (Rec. doc. 616).
11 This Court finds it notable that, until this Court ordered him to appear personally, Reich sent another lawyer from his firm to the hearing on that motion and to other conferences and hearings at which his conduct was a topic of discussion. (See, e.g., Rec docs. 245, 565, 706 at p. 2).
Finally, the Court must address another exchange that Reich actually cites in brief as evidence that he is unfairly being singled out by the Court and that "other attorney participants in the Hoffman deposition could equally be seen to violate Rule 30(b)(2)." (Rec. doc. 698 at pp. 10-11). It occurs toward the end of the Hoffman [*35] deposition (where tensions had clearly escalated between the lawyers) when counsel for Wood Group, Hal Welch ("Welch"), was questioning the witness. Reich claims Welch engaged in questionable conduct here, including "engag[ing] in an argument with the court reporter on the record, causing the court reporter to state 'I am not going to take abuse from you,' and even threatening to call the judge at least two times." (Rec. doc. 698 at p. 12). Indeed, Welch did have such an exchange with the Court reporter, but the extremely truncated quotation of the episode in Reich's brief does not begin to tell the complete story of why the exchange occurred. A fuller examination of the exchange is called-for.
Here is the exchange that precipitated this "argument" with the reporter:
Q. (By Welch): Okay. If I ask you to assume that that permit was given to Mr. Dantin12 on the morning of November 16th and he intended to have his crew work in the LACT unit, do you believe that he should have stopped the work and advised someone about the new area?
MR. KUTNER: Object to form.
MR. REICH: Let me object to the form of the question. It's vague. Assumes facts not in evidence. We all know there was never any work in the LACT [*36] unit. LACT unit was never worked on. We all know that, so to make that statement assumes facts that are not in evidence and never will be in evidence.
MR. WELCH: I know you try to redefine LACT project, but just to cover this objection--
MR. REICH: You said in the LACT unit.
MR. WELCH: Let me do it.
MR. REICH: In the LACT unit.
MR. WELCH: Okay. Let me -- let me --I'm rephrasing my question. Leave me alone.
(The reporter interrupted.)
COURT REPORTER: Okay. We're going to do this one at a time or we're not going to do it.
MR. WELCH: No, we're not, ma'am. No, we're not. You don't control this deposition. Okay?
COURT REPORTER: Yes, I do.
MR. WELCH: Quit ordering us around.
COURT REPORTER: I have to make an accurate record. All right. Do you want to call the judge and we'll see what he has to say?
MR. WELCH: No, I don't want to call the judge. I want to ask my question.
COURT REPORTER: And I want to make an accurate record. All I'm asking is that you have the courtesy to speak one at a time.
MR. WELCH: And I will be happy to do that if you stop ordering us around. Are you ready for me to proceed?
COURT REPORTER: I'm not going to take abuse from you.
MR. WELCH: I'm not going to take abuse from you.
COURT [*37] REPORTER: We're going to call the judge.
MR. WELCH: Call the judge.
MR. REICH: Well, we can't have a deposition if the reporter is not going to report. So do you want to take a two-minute break and let everybody walk around and cool off and then --
MR. WELCH: No, I'm cooled off. I want to just ask my question.
Q. (By Mr. Welch): I'll rephrase my question. You have a legible copy in front of you. It shows the areas as the Wimco, the separator and the production manifold.
A. Yes, sir.
Q. Okay. My question to you is if Mr. Dantin was given that document on the morning of November 16th and he intended his crew to work in the LACT area and do hot work on a pipe in that area running from the Wimco to the wet oil tank, do you believe he should have stopped the work and reported that intention --
MR. REICH: Now, let me object --
Q. (By Mr. Welch): -- to someone at Wood Group?
MR. REICH: Object to the form of the question. Assumes facts that are not in evidence and never will be in evidence. There's never any work in the LACT area. There's never any work in the LACT unit or on the LACT unit. So it assumes facts that are not in evidence and never will be in evidence. Besides, he doesn't -- this witness [*38] doesn't even know where the, quote/unquote, LACT area that you've referenced is unless you can establish he's got familiarity with the platform, which you haven't done.
Q. (By Mr. Welch) Let's try again, sir. If Mr. Dantin was given a hot work permit that listed those three areas and he intended to have his crew do hot work in an additional area, do you believe that he should have stopped the work, reported that additional area to Mr. Srubar or someone else from Wood Group?
MR. REICH: Object to the form of the question. Assumes facts that are not in evidence and never will be in evidence.
Q. (By Mr. Welch) You can go ahead and answer the question.
(Rec. doc. 698-3 at p. 66).
12 Importantly, Mr. Dantin is (or was) an employee of Reich's client.
This is testimony cited by Reich in his defense, which is rather astonishing to this Court. In the underlined portion of the language quoted above, Reich makes repeated, lengthy speaking objections and interrupts his opponent to do it. The lawyers' talking over each other is what led the court reporter to interrupt and ask that they cease doing so, in order that she could make an "accurate record." For a lawyer who has repeatedly been sanctioned [*39] by other courts (including this one) for this very behavior, it is difficult to understand why Reich would choose to highlight this exchange in his defense.
This "everyone else is doing it" defense simply cannot be used to gloss over the gross impropriety of these objections being lodged by a lawyer who -- better than anyone -- should understand that such conduct would never be allowed in a courtroom.13 The Court cannot accept that Reich's conduct here should go un-addressed because -- in his opinion -- other lawyers in the case objected too much or argued with the court reporter.
13 In this vein, Reich suggested in his appeal brief to the District Judge, "As the adage in professional sports goes, a foul can be called on every play." (Rec. doc. 645-2 at p. 8). To extend the analogy, that fact does not mean the referees leave their whistles at home.
The Court is likewise unconvinced by Reich's argument, made in brief, that the Court's reference to the Code of Professionalism of the Louisiana Bar Association was misplaced or in error. In its original opinion, the Court noted the requirement of that Code that counsel conduct themselves with "dignity, civility, courtesy and a sense of fair play"14 and [*40] observed that Reich violated the Code in that regard, not only with his initial question but also in his harassing and repetitive follow-up questioning of Hoffman. (Rec. doc. 638). Reich, through counsel, apparently takes that observation to mean that the Court's decision to sanction him was based entirely upon that violation, and he devotes many pages in brief to explaining why a "violation" of that Code cannot form the basis for sanctions, discipline or punishment of a lawyer in this District. For a number of reasons, that argument is unconvincing.
14 The Code was adopted by the Judges of the Eastern District of Louisiana on August 4, 1999.
First and foremost and to be absolutely clear, while the Court does find that Reich's conduct ran afoul of the Code, that fact did not and does not form the basis of any sanction assessed against him. Nothing in the previous order or this one makes that connection. If there is or was ever any real doubt on this question, one need look no further than page two of Reich's brief to eliminate it. That is where this Court's original language explaining the basis of the sanction against him is block-quoted:
As was the case previously with respect to the deposition [*41] of Mr. Arendt, Black Elk's present motion was largely precipitated by the conduct of counsel for GIS, Mr. Reich. In this Court's view, that conduct was in clear violation of the District Judge's Order of April 9, 2014 (rec.doc.247) and the Federal Rules and is therefore sanctionable. Those sanctions will be assessed via a separate order to be issued by the undersigned.
(Rec. doc. 698)(quoting rec. doc. 616) (emphasis added).
Rather, the Court's observations regarding the Code of Professionalism serve to underline the unprofessional nature of his questioning and treatment of the witness as illustrative of this Court's conclusion -- then and now -- that no serious lawyer could actually believe that such conduct "simulates the dignified and serious atmosphere of the courtroom."15
15 Bordelon Marine, 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 at *5.
Speaking of the term "unprofessional," the Court takes issue with the idea, expressed in Reich's brief, that the term, "unprofessional," is so vague that it should never be used as a standard to sanction an attorney. (Rec. doc. 698 at p. 8). That academicians may debate the "meaning of professionalism" does not excuse attorneys from practicing it. Nor does it somehow handcuff judges from imposing sanctions if and when [*42] they perceive lawyers practicing before them have acted unprofessionally. That, in fact, has happened far too many times to Reich in this District.
This argument is all-the-more unpersuasive when one considers that just a few months ago, while this matter was on appeal to the District Judge, Reich himself filed his own motion for sanctions against another lawyer in a different division of this Court, in which he stated unequivocally that "interrupting the witness and opposing counsel [and] interposing testimony" "betrays the professionalism and decorum required at deposition by the Federal Rules and by this Honorable Court." Chet Morrison Contractors, L.L.C v. OneBeacon, No. 14-CV-1958 "R"(3)(Rec. doc. 36-1 at p. 6) (emphasis added). In that motion, he asked the court to sanction his opponent for betraying said "professionalism and decorum" by ordering him to attend "two additional hours of continuing legal education in the areas of ethics and professionalism above and beyond what is required of him as a member of the Louisiana bar." (Id.). One would assume -- this Court certainly does -- that Reich knew what the words "professionalism and decorum" meant when he signed that pleading.
[*43] Indeed, given the number of times he has been sanctioned for various unprofessional behaviors, Reich, as much as anyone, should have a fully refined sense of where the line between professional and unprofessional can and should be drawn. His history in this regard makes this particular argument unconvincing.
While on the subject of Reich's history of being on the receiving end of court-ordered sanctions, some additional observations are important. In its original Order and Reasons the Court discussed that history at some length before finding that Reich's conduct in this case warranted sanctions. In the order remanding the matter for further proceedings, the District Judge stated: "Reich's previous conduct in other cases is not at issue here." (Rec. doc. 706). That is certainly true as to the threshold question whether his conduct in this case was sanctionable, i.e., a decision to sanction him for conduct in this case should not be based upon conduct in prior cases. However, the Court finds that his experience in this regard is germane to its analysis for a number of reasons, not least of which is the "vagueness" argument he raises here for the first time.
When a lawyer argues, as Reich [*44] does here, that the "very vagueness of 'professionalism' should preclude its use punishing an attorney," he makes his history of being punished for being "unprofessional" relevant. When a lawyer is sanctioned repeatedly for "unprofessional" conduct, his subsequent argument that he does not understand the meaning of the word rings hollow to this Court. Similarly, when that lawyer has been repeatedly told by courts in this district that he failed to "treat . . . deponents . . . as he would have been required to treat them at a trial in a courtroom" and that he "would never have been allowed to act as he did during the deposition at a trial in this district,"16 he cannot be heard to complain, upon repeating that behavior, that he does not understand the standard of conduct required of lawyers by Rule 30.
16 Bordelon, 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 at *5.
His prior conduct is also relevant to his request for leniency. At the hearing, counsel for Reich urged the Court repeatedly that, based on the "totality" of the deposition, Reich should be given a "pass" for his conduct in repeatedly asking Hoffman the same improper question. Describing the "apology" exchange as a "speed bump" in the deposition, counsel suggested at the hearing that "[m]aybe in the [*45] circumstances of this, it's just best to let it go this time. . . ." (Tr. at 44). Counsel also suggested that if Reich were given a "pass" by the Court here and later repeats this conduct in subsequent depositions, he is now on notice that the Court finds the conduct unbecoming and can expect harsh treatment. Or as counsel phrased it at the hearing, "forewarned is forearmed." (Tr. at p. 15).
Forewarned is forearmed indeed. With all due respect to counsel's argument and laudable efforts on Reich's behalf, this is where the leniency-as-remedy suggestion falls flat. No one in this Court's knowledge or experience has been more "forewarned" than Reich in these matters. By his own account, he has been sanctioned for litigation misconduct six times in the past nine years. Yet, his conduct persists. Worse -- at least in the context of a request for a "pass" -- Reich steadfastly resists acknowledging, in any meaningful way, that he has acted unprofessionally. And remorse is out of the question. There is not an inkling of evidence in the record of this unfortunate saga that supports the plea for a "pass" in this case. Rather, his unfortunate history of sanctions for similar misconduct makes it [*46] all but impossible to credit an argument that he will be deterred from such conduct in the future by being given a "pass" here.
Finally, and as will be discussed below, where the Court decides, as it does here, that Reich's conduct in this case is sanctionable, his prior history of being sanctioned for similar or identical conduct is clearly relevant in fashioning an appropriate sanction that will "deter ongoing and future misconduct." (Rec. doc. 686 at p. 16). Indeed, Reich concedes as much in his pleadings.17
17 "Reich would not disagree the above-cited cases [in which he was sanctioned] might be relevant to this Court's consideration" of the nature and/or severity of any sanction that the Court might impose upon him, "specifically as it pertains to deterrence." (Rec. doc. 698 at p. 18).
In the final analysis and for all the reasons set forth above, the Court finds that Reich's conduct in this case, specifically his repetitive and harassing questioning of Hoffman and his interrupting, arguing with and lecturing the witness, impeded, delayed and frustrated the fair examination of the deponent, in violation of Rule 30 of the Federal Rules of Civil Procedure. The Court further finds that neither his repetitive and abusive questioning of [*47] Hoffman nor the lengthy speaking objections he lodged during Welch's questioning would be allowed in any courtroom by any judge in this District. In addition, his repetitive and harassing questioning of Hoffman also violated the District Judge's Order of April 9, 2014. (Rec. doc. 247). For these reasons, the Court will assess sanctions.
V. Determining an Appropriate Sanction in This Case
Having found Reich's conduct in this matter sanctionable, it now falls to the Court to fashion a sanction that will "deter ongoing and future misconduct" by this particular lawyer, as well as members of the bar generally. (Rec. doc. 686 at p. 16)(citing Fed.R.Civ.P. 30(d)(2)). This particular lawyer's history in this area complicates this task, as the record reflects numerous occasions on which other judges of this district have assessed monetary sanctions against Reich for similar and often identical conduct -- to little or no effect, as clearly reflected by his conduct in this case.
For instance, in Bordelon Marine, Inc. v. F/V KENNY BOY,18 Magistrate Judge Knowles issued a monetary sanction against Reich for a multitude of transgressions in two depositions, including behavior that he has repeated in subsequent cases, including [*48] this one. The conduct Judge Knowles found sanctionable in Bordelon included objecting "all too frequently," with the "majority" of those objections lacking a valid basis; failing to treat the deponents in that case "as he would have been required to treat them at a trial in a courtroom"; "storming out of the room"; improperly instructing witnesses not to answer questions and being an "instigator of discovery disputes" that continued for "pages upon pages of the deposition transcripts." 2011 U.S. Dist. LEXIS 156453, [WL] at *5-6. Judge Knowles found that Reich's conduct "impeded and frustrated the fair examination of the two deponents" in that case and sanctioned Reich for conduct that crossed the bounds of zealous advocacy. 2011 U.S. Dist. LEXIS 156453, [WL] at *6. In so deciding that matter some four years ago, Judge Knowles observed (as the Court does here) that "this is not the first time that Reich's behavior at a deposition has been called into question and resulted in the imposition of sanctions." 2011 U.S. Dist. LEXIS 156453, [WL] at *6 n. 3 (citing Landers v. Kevin Gros Offshore, L.L.C., No. 08-CV-1293, 2009 U.S. Dist. LEXIS 65480, 2009 WL 2046587 (E.D. La. July 13, 2009)).
18 2011 U.S. Dist. LEXIS 156453, 2011 WL 164636 (E.D. La. Jan. 9, 2011).
In Landers, Magistrate Judge Shushan of this court was confronted with a motion for sanctions against Reich and his client arising out of Reich's conduct in multiple depositions of the plaintiff in that case. After citing much of the same authority and [*49] caselaw cited herein, Judge Shushan found that Reich's conduct in those depositions was sanctionable in a number of ways. In so finding, Judge Shushan wrote:
[t]he behavior of [Reich] in the deposition was improper. He repeatedly interrupted the witness and would not let him complete his answer and provide his explanation. His tone of voice can best be described as yelling. Many of his questions were improper. The instruction by [opposing] counsel not to answer certain questions was improper, Fed R. Civ. P. 30(c)(2), but, under the circumstances, it was understandable. The record demonstrates that [Reich] repeatedly failed to conduct his examination of [Plaintiff] as he would at the trial and denied him the same rights and privileges due a witness testifying in court at a trial. Sanctions will be imposed.
Landers v. Kevin Gros Offshore, L.L.C.,
No. 08-CV-1293, 2009 U.S. Dist. LEXIS 65480, 2009 WL 2046587 at *4
(E.D. La. July 13, 2009).
In addition to these two cases in which Reich was sanctioned for conduct essentially identical to that at issue in this case, there are other instances in this District in which Reich was sanctioned by Chief Magistrate Judge Wilkinson for signing an unnecessary discovery motion, which Judge Wilkinson described as "another motion of the type that I've [*50] seen Mr. Reich file regularly for 19 years now"19 and for transmitting correspondence containing "falsehoods" to opposing counsel concerning court-ordered discovery.20
19 See XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., No. 12-CV-2071, 2014 U.S. Dist. LEXIS 70365, 2014 WL 2155242 at *2 n. 17 (E.D. La. May 21, 2014)(Vance, J.)(affirming Magistrate Judge Wilkinson's order assessing sanctions). Judge Wilkinson's comments are found at rec. doc. 169-3, p. 7 in No. 12-CV-2071.
20 Lytal Enterprises, 2006 U.S. Dist. LEXIS 84342, 2006 WL 3366128 at *5.
Finally, since the issuance of this Court's original order in this case, Reich was sanctioned for deposition misconduct by this Court in a different case, which order was later upheld on appeal by the presiding District Judge. See Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 79223, 2015 WL 3796458 (E.D. La. June 18, 2015) (Morgan, J.), affirming Howard v. Offshore Liftboats, LLC, 2015 U.S. Dist. LEXIS 26629, 2015 WL 965976 (E.D. La. March 4, 2015) (North, M.J.).21 In that case, the District Judge detailed a rather stunning list of instances of deposition misconduct by Reich in three depositions that all occurred after the Hoffman deposition in this case and upheld sanctions awarded against him for his "strong-arm tactics and utter disregard for civility." (2015 U.S. Dist. LEXIS 79223, [WL] at *2).22
21 Unlike in this case, this Court's order in Howard was issued in response to a motion seeking sanctions against Reich.
22 These included including interrupting the witness's testimony, asking repetitive questions, arguing with the witness, demanding "yes" or "no" answers, referring to a deponent as stupid, [*51] questioning the witness's competency, insulting the witness, making improper speaking objections, reacting in a hostile manner to other lawyers' form objections and lodging lengthy and rambling objections. (Id., rec. doc. 258)(cited by Black Elk in this matter at rec. doc. 705 at pp. 7-8).
The Bordelon, Landers and Howard cases and Reich's role in them have been discussed at some length by Reich in his pleadings in this case and at both the original hearing on Black Elk's motion and at the hearing on the Rule to Show Cause. Curiously, despite being on the receiving end of sanctions issued in each of those cases, Reich continues to insist, as he does here, that it was his opponent in each case who was primarily to blame for the contentious litigation environment that led to his sanctionable conduct in those cases. In explaining his role in those cases he consistently understates the impact of his own conduct through what has become an increasingly transparent strategy of misdirection, attempting to focus the Court's attention on his opponents' conduct rather than his own. The Court supposes this is an attempt at mitigation of some sort, so will address it in some detail here.
This is [*52] not merely an exercise in counting up all of the objections raised by all of the lawyers in this case, adding them up and comparing the respective sums to each other to determine who is the most disruptive presence at a particular deposition. This Court has read, re-read and now re-re-read the Hoffman deposition at Reich's invitation and, while there are many objections lodged therein by many of the 12 lawyers present, the Court cannot say that any of them crossed the line with respect to numerosity or substance, save Reich. In fact, of the 70-odd Black Elk objections noted by Reich in his brief as evidence of its counsel's obstreperousness, a number of those were lodged directly in response to Reich's repetitive and abusive questioning of Hoffman on the "apology" issue. Given both the substance and tone23 of those questions, no one -- not the Court or Reich -- should be surprised at those objections.
23 As noted, the Court has also twice viewed and listened to the DVD of the deposition.
In addition to this pronounced habit of shifting the focus and blame from himself to his opponents, it is worth noting that, as he has recently done in another case in which he was sanctioned, Reich continues [*53] to engage in "revisionist history"24 as to what happened in this and prior cases. For instance, he continues to (repeatedly) insist that he was only sanctioned in the Bordelon case for terminating the deposition, when a plain reading of the case reveals otherwise. Likewise here, he insists that counsel for Black Elk and Wood Group engaged in "[e]xcessive and unnecessary objections and interruptions [that] give good cause to impose sanctions. . ." (rec. doc. 655 at p. 11), but the examples quoted by him hardly establish such egregious conduct and, in some cases, reveal conduct by opposing counsel that contradict his position.
24 Howard, 2015 U.S. Dist. LEXIS 79223, 2015 WL 3796458 at *2. In that case, District Judge Morgan also explained that Reich had "cherry-picked" testimony to make his case, a tactic he has repeated here. Id.
The Court has already discussed the fact that the exchange cited by Reich between himself and Welch in the Hoffman deposition says far more about Reich's misconduct than his opponent's. Another example of things not really being what Reich says they are in this case can be found in an exchange in the Hoffman deposition in which counsel for Black Elk, Charles Talley, actually requests (and is granted) permission to maintain a "continuing [*54] objection," so as to avoid having to state the same form objections to a line of questions he found objectionable. (Rec. doc. 583-2 at p. 28). The Court does not find this to be a tactic consistent with a lawyer on a "campaign to frustrate depositions with vast numbers of objection to form," as Reich suggests. (Rec. doc. 655 at p. 3).
This Court's task here is to fashion an appropriate sanction that will deter Reich from repeating the conduct he displayed in this case. That Reich continues to engage in conduct that was previously sanctioned, to deflect responsibility, to consistently fail to concede his behavior is improper, and to routinely misstate the nature of his sanctionable transgressions in prior cases causes this Court to conclude that the sanctions assessed against him in those cases did not have the desired effect. He seeks "leniency" in this case,25 but requests for leniency are usually preceded by some expression of contrition. Ironically, given that this entire matter arose from Reich's repeated and improper demands of Hoffman for an apology, none has been forthcoming from Reich. Raging against the Court, the system, the vagueness of the standards and his opponents is not [*55] the response of a lawyer who accepts responsibility for his own missteps, nor is it evidence that convinces the Court that the usual monetary sanction will have an effect now that it has never had before.
25 (Rec. doc. 698 at p. 14).
In the end, it is inconceivable to this Court that a lawyer as experienced as Reich could believe that the antics he displayed in the Hoffman deposition would be allowed in a courtroom. He has been sanctioned or admonished for similar conduct far too many times for him to credibly argue that this is good-faith conduct that should be tolerated by the Judges of this Court. It appears to this Court that, far from being deterred by the sanctions awarded against him in the past, Reich is actually emboldened by them. Somehow, he (and others) must be made to understand that conduct of this sort cannot and will not be tolerated. Money sanctions have done nothing thus far to accomplish this goal and the Court therefore declines to try that approach again here.
The Court has thoroughly considered the additional briefing before the District Judge and here, as well as the argument of counsel and Reich at the recent hearing and finds the sanction originally assessed against [*56] Reich is appropriate in this matter, with two adjustments, to be discussed below. In so finding, the Court makes the following additional observations.
While the Court cannot disagree that, generally, sanctions against a lawyer can cause potential reputational harm, the Court cannot agree that the sanction assessed here is so unusual, severe or expensive that it is unwarranted. See Adams v. Ford Motor Co., 653 F.3d 299, 308-09, 55 V.I. 1310 (3rd Cir. 2011). It also occurs to the Court that this argument would and does carry more weight when it is made by a lawyer facing his or her first (or even second) sanction by a Court. This lawyer is being sanctioned for a sixth time in this District for improper litigation conduct. He simply cannot be heard to complain that this latest episode will or may leave a "black mark" on his reputation when he has had so many warnings about his conduct and opportunities to moderate it.
As to the "alternative" sanction suggested by Reich's counsel -- that rather than order him to attend additional CLE's the Court should order Reich to host one (with the Court's participation, no less) -- the Court declines to adopt that proposal. In the Court's view, this alternative is not at all well-calculated to achieve the goal here, which is [*57] to deter future misconduct by Reich. Finally, while the Court finds it regrettable that some unknown person sent a copy of the Court's original sanctions order to Reich's wife and London clients (rec. doc. 698 at p. 16), that is not reason enough for this Court to fail to act here.
Accordingly, Reich is ordered to attend an additional ten (10) hours of continuing legal education in 2015 over and above what he is required to attend as a member of the Louisiana bar, at least five (5) of which must be in the area of professionalism or ethics. As many as five (5) hours may be in the area of federal civil procedure.26 The courses attended must be approved or accredited either by the Federal Bar Association or the Louisiana State Bar Association. No later than February 1, 2016, he is to provide the Court with documentation that he has complied with this order. Having previously affirmed that he shared a copy of the original Order and Reasons with his client, he need not do so again.
26 In connection with his request for leniency in brief, Reich stated that "[a]fter this Court rendered its March 3, 2015 Order and Reasons, Reich took several of the ethics/professionalism CLE courses this Court ordered him [*58] to take." (Rec. doc. 698 at p. 12). At the hearing, Reich was unable to recall how many such hours he had attended. Responding to an order to supplement the record with this information (rec. doc. 709), Reich declared that he had attended two extra hours of ethics/professionalism CLE's thus far in 2015. (Rec. doc. 711). While two out of ten hardly qualifies as "several," the Court obviously credits these courses and expects that Reich need now attend only eight additional hours in 2015.
Reich is further cautioned that should similar deposition conduct or tactics by him come to the attention of this Court at any time in the future, in this case or any other before this Court, the sanction ordered (or, more likely, recommended) by the Court will be severe -- in all likelihood more severe than this Court is empowered to employ. The Court sincerely hopes that never happens and that the sanction imposed here finally achieves its objective. The Court encourages Reich to read the full law review article by Professor Ciolino that he cited in brief and take particular note of Professor Ciolino's suggested approach:
it more necessary, not less, to stand on your own feet, to be self-critical, and [*59] to be obliged to choose for yourself. For better or for worse, lawyering is no longer a self-regulated profession. Courts, rather than bar committees of comrades, now regulate our conduct. But as to professionalism - at least as to professionalism-as-seeking - we are and we should remain self-governing.27
This is where academic theory, as embodied in Professor Ciolino's article, and the Federal Rules coalesce -- it is self-evident that, at the moment of truth, whether the deterrent goal of court-imposed sanctions is attained depends upon -- indeed requires -- that the once-sanctioned lawyer be capable of self-governance. While this capability has thus far eluded Reich, the Court hopes at long last that he finally attains it going forward.
27 Ciolino, Redefining Professionalism as Seeking, 49 Loy.L.Rev. at 239-40.
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