“This was a large, important case for both parties. The parties were entitled to zealous activity from their outside counsel and from their inside corporate attorneys. However, zealous advocacy does not justify abusive conduct or hiding the ball.”
That was the conclusion of Senior U.S. District Judge R. Brooke Jackson in ORP Surgical, LLP v. Howmedia Osteonics Corp., Civil Action No. 1-20-cv-01450-RBJ (D. Colo 5/10/22 Findings of Fact, Conclusions of Law, and Order of Judgment) where he found that the defendant had failed to preserve text messages (although scaling back an appointed special discovery master’s suggestion of a “negative inference” spoilation sanctions) and that defendant’s Chicago counsel had improperly coached insufficiently prepared Rule 30(b)(6) witnesses during depositions/failed to timely produce relevant documents in connection with those depositions (again scaling back from the special master’s suggestion of an issue preclusion sanction). However, given that these violations did occur and were willful/grossly negligent in nature, District Judge Jackson determined that the defendant should pay the special master’s costs/ expenses on the text message issue and that defendant’s counsel should pay the master’s costs/expenses on the discovery misconduct issue.
We do not know what those special master costs/expenses are, but we would guess they are substantial. The recurring lesson is to not engage in gamesmanship during the litigation process; if you do, it will cost both the client and their attorneys if an opponent tees up the issues right, as the plaintiff did in this case.
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