A Tense Encounter

ABA Journal has a report on a deposition-related sanction against one of three attorneys that was affirmed by the United States Court of Appeals for the Seventh Circuit

Caryn Shaw, an attorney for the Plaintiffs in this case, allegedly assaulted opposing counsel Lisa Dreishmire after a heated deposition at the Chicago Board of Education building. When Dreishmire brought the incident to the district court’s attention, the court ordered briefing and held an evidentiary hearing to “get to the bottom” of it. The district court ultimately concluded that Shaw misled the court about the incident and her falsehoods unnecessarily prolonged the litigation. As a sanction for Shaw’s conduct, the court removed her from the case and ordered “Plaintiffs’ counsel”—a total of three attorneys—to reimburse Defendants for reasonable attorneys’ fees and costs. Plaintiffs’ counsel filed this appeal challenging those decisions. We affirm the district court’s imposition of sanctions against Shaw but vacate the sanctions against the remainder of “Plaintiffs’ counsel” for lack of notice.

The lawsuit alleged First Amendment violations against the Board; the deposition took place in 2017.

At the end of a “tense” day

The deposition began around 2 p.m. and lasted until just after 6 p.m. By all accounts, it was a tense encounter, with the Board’s attorneys objecting early, often, and at great lengths.

According to the witnesses at the evidentiary hearing, when the deposition ended, as Dreishmire was leaving the room, a frustrated Caryn Shaw screamed at her, asking “what the [f***] is your problem.” Dreishmire reentered the room and instructed the court reporter to go back on the record. Shaw responded, “No, this is personal,” and moved in Dreishmire’s direction.

What happened next was disputed but the police were called and a bar complaint was filed against Shaw.

Due process denied to two plaintiff attorneys

At that point, the sanctions decision against Plaintiffs’ counsel had been made. It cannot be that an order imposing sanctions also provides notice of sanctions. Furthermore, the order states no basis for sanctioning other members of “Plaintiffs’ counsel” besides Caryn Shaw. Given the lack of specificity about the conduct that apparently subjected Anne Shaw and Donald Villar to sanctions, they had no notice of the court’s intent to impose sanctions and no opportunity to show cause why sanctions were not proper. Johnson, 422 F.3d at 549.

For these reasons, we conclude that the district court abused its discretion in sanctioning Plaintiffs’ attorneys Anne Shaw and Donald Villar. We therefore vacate the sanctions against them.

But not to Caryn Shaw

The district court found that Shaw engaged in bad faith when she lied to the court about how the alleged assault transpired.

Effect of bar complaint

No similar threat of intrusion exists here. The district court’s sanction for Shaw’s conduct in the federal case would have no effect (let alone an adverse effect) on the ARDC’s decision of whether and how to discipline Shaw. And the mere fact that the district court and the ARDC could run parallel investigations and each impose sanctions for Shaw’s behavior is not enough to require abstention, for we have held that the mere existence of parallel proceedings does not require a district court to invoke Younger. See Mulholland, 746 F.3d at 816.

Because the district court could resolve the sanctions issue without offending comity and federalism, or posing any threat to the ARDC process, it was not required to abstain.

(Mike Frisch)