In discovery, attorneys are always looking for that smoking gun or a way to hide it. They sometimes forget, however, that the judge is the one who can really pull the trigger.
The Black-Robed One doesn't really want to shoot anybody for playing fast-and-loose with discovery -- at least not on the record. But when the judge fires off a warning shot in open court, the lawyers better listen very carefully.
If they don't follow discovery orders, they're taking their professional lives in their hands. Like Dirty Harry would have said: "Well, we're not just gonna let you walk out of here."
Smith & Wesson & Pitman
Judge Robert Pitman is no Dirty Harry, but he let the lawyers at Pepper Hamilton know he was serious about discovery. He ordered the attorneys to produce documents in a high-profile Title IX case, and he was not happy when they didn't meet the deadline. He was more than not happy when they objected -- untimely.
"This violation has caused three months of delay in a case that has already been pending for three years and forced the parties to revisit issues that should have been resolved two years ago when the subpoena was first issued," he wrote. "This conduct increases costs for all parties and wastes public resources that are meant for adjudicating good faith disputes."
In judicial-speak, this is how judges talk right before they pull out the sanctions gun. Seasoned lawyers can feel it coming. It feels like that moment before you vomit. It starts low in your stomach, winds up towards the esophagus, and could explode out or your mouth at any second.
Pitman didn't shoot then, but it's coming. Probably today. Any moment now.
Doing the Math
Lawyers are not known for math skills, but they can add up attorney's fees on the fly. Sanctions for three months of delay equals ... exactly.
You gotta feel sorry for Pepper Hamilton because they were trying to do the right thing before this discovery thing. Baylor University had hired the firm to investigate and report on sexual assault allegations on the campus. The lawyers reported, and the university apparently followed their direction: people were fired. But then victims sued the university for not doing enough, and soon enough the plaintiffs wanted relevant documents from the defendants and their attorneys. Enter poor Pepper Hamilton.
"Poor" may be the wrong word. The firm certainly has enough money to pay monetary sanctions for violating discovery orders. And you can't really pity the fool who doesn't listen very carefully to a man in a black robe -- whether he has a gun or just a gavel.