University of Denver

District Court Judge Calls Out Need for Change in Discovery Culture, Imposes Sanctions

Senior Director

In a recent opinion issuing discovery sanctions, a federal district court judge in the Northern District of Iowa denounced modern discovery practice in the United States. Judge Mark W. Bennett began the opinion with a reference to Hamlet: “Something is rotten, but contrary to Marcellus's suggestion to Horatio, it's not in Denmark. Rather, it's in discovery in modern federal civil litigation right here in the United States.” The court went on to discuss the current state of discovery, how it is too often “mired in obstructionism,” and how such inappropriate conduct is “born of a warped view of zealous advocacy.”

The court did not lay all the blame on lawyers, recognizing that judges often ignore such conduct, thereby reinforcing and incentivizing such tactics. With that, the court sua sponte issued sanctions against defense counsel for coaching witnesses and excessive interruptions during depositions. Rather than impose a substantial monetary sanction, the court decided to impose a sanction that would have a more deterrent effect. The court ordered the defense attorneys, who work at one of the 20 largest firms in the United States, to “write and produce a training video in which Counsel, or another partner in Counsel's firm, appears and explains the holding and rationale of this opinion, and provides specific steps lawyers must take to comply with its rationale in future depositions in any federal and state court. The video must specifically address the impropriety of unspecified 'form' objections, witness coaching, and excessive interruptions.” The court's commentary and sanctions serve as a reminder to litigators everywhere of the importance of cooperation in modern discovery practice.