Fifth Circuit Allows Some Sanctions Even Though Parties’ Settlement ‘Precluded’ Them (And The Court Now Publicly Releases Oral Arguments)

Posted by Alan Childress

Here is a useful summary from yesterday’s Fifth Circuit Civil News Daily Update, written by its editor Bob McKnight who allowed me to quote it in full:

Fleming & Associates v. Newby & Tittle Defendants, No. 07-20277 (5th Cir. May 30, 2008) (Smith, Prado and Ludlum (W.D. Tex.)): The district court sanctioned the plaintiffs’ lawyers in connection with the filing of an amended expert witness report the day before the expert’s deposition, but the parties settled their litigation before entry of an order setting a fee-based sanction. Even though the defendants expressly informed the court that the settlement precluded them from collecting on whatever sanction might be awarded, the sanction respondents were ordered to pay about $15K to the defendants. Holding: The Court vacated only the monetary component of the sanction. “[A]lthough compensatory sanctions may be bargained away by the parties, the court’s right to sanction parties for misconduct remains,” so mootness had not overcome all aspects of the sanctions order, and the respondents were not entitled to have it vacated entirely. On the merits, the Court readily found that the district court did not abuse its discretion in finding that the respondents’ handling of the amended expert witness report was problematic under FRCP 16(f). (Appealed from S.D. Texas. [Opinion linked here.])

UPDATE:  The Civil News also reports today that the Fifth Circuit now posts [here] their actual oral arguments online (starting with late May 08 arguments), in a Windows Media format.  Even attorney names can be searched.  I would add that those preparing for argument may wish that judges’ names could be searched, but the same effect is achieved with a little cross-referencing within the court’s website using case names or numbers.