Substitution Out Prior To Discovery Hearing Did Not Preclude The Sanctions Award, With Appealing Attorney Chided For Incivility.
Sometimes attorneys just need to “take their lumps” for discovery abuse, whether inspired by the client, counsel, or both to some degree. Masimo Corp. v. The Vanderpool Law Firm, Inc., Case No. G061829 (4th Dist., Div. 3 May 2, 2024) (published) demonstrates the prudence of taking those lumps in the right circumstances and also acting professionally with opposing counsel during discovery disputes (or other junctures of a case).
There, three defendants and their ex-counsel were sanctioned for $10,000 in discovery abuse, with the record showing some interesting emails from the sanctioned attorney to the opposing attorney before the award came down.
On appeal, sanctioned attorney primarily argued that his firm was no longer counsel of record at the time of the sanctions award. That argument was rejected because the discovery sanctions statute does not limit an award to counsel of record given that such a rule would insulate a predecessor counsel from being responsible for discovery misuse. But, as a kicker, the appellate panel—in an opinion authored by Acting Presiding Justice Bedsworth—discussed incivility concepts and chided ex-counsel for his behavior. “Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.” (Slip Op., at 10.)
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