Erdman v. Victor

Background

The court ordered Adam Victor’s attorneys, Alfred J. Polizzotto and Emilio Rodriguez, to show why they should not be sanctioned under Federal Rule of Civil Procedure 16(f)(1)(C). The order followed the attorneys’ failure to timely produce certain privilege logs. Those logs were later produced.

The opinion describes a broader pattern of missed court-ordered deadlines. In an earlier discovery dispute, the defendant did not timely respond to the plaintiff’s communications or comply with an order requiring a search for responsive documents and a sworn statement describing the search. The court later found that the defendant had failed to comply with that order. The court had also previously told both attorneys that they were responsible for meeting deadlines or seeking extensions.

In the more recent incident, the court ordered production of privilege-log entries by December 28, 2023. Rodriguez agreed that the deadline would be no problem, but later admitted that he missed it because of a family matter. Neither attorney’s affidavit described efforts to communicate with the other attorney about the missed deadline or seeking an extension. The opinion also states that the attorneys failed to promptly arrange a court-ordered conference with discovery vendors.

Legal standard

Rule 16(f) allows a court to issue appropriate orders when a party or attorney fails to obey a scheduling or other pretrial order. Courts may consider the factors commonly used for discovery sanctions: whether the violation was willful or adequately explained, whether lesser sanctions would work, how long the noncompliance lasted, and whether the person had been warned about the consequences. The court noted that bad faith was not required and that a violation of a pretrial order could support some sanction.

Ruling

The court found sanctions appropriate. It characterized the attorneys’ conduct as willful because they had no effective process for ensuring compliance with deadlines or even seeking extensions. The court also relied on the repeated nature of the violations, the prior warnings, and the attorneys’ failure to take responsibility for ensuring compliance.

The court considered imposing a fine payable to the court clerk but exercised its discretion not to impose one. Instead, it ordered that:

1. Rodriguez and Polizzotto must attend all future court conferences in the case and be equally responsible and available for all aspects of the litigation, including required discussions with the plaintiff. 2. Starting January 26, 2024, and every Friday afterward for the rest of discovery, both attorneys must send the plaintiff a letter signed by both attorneys describing current efforts to respond to discovery requests and identifying applicable deadlines.

The court stated that future violations of court orders or discovery obligations would result in additional sanctions, including a fine.