His Back Pages

The United States Court of Appeals for the Second Circuit affirmed monetary sanctions imposed on attorneys who had sued Bob Dylan

The question in this case is whether the district court abused its discretion by imposing modest monetary sanctions pursuant to Federal Rule of Civil Procedure 37 against attorneys who violated a discovery order of the court, failed to meet agreed-upon discovery deadlines, and, more generally, failed to abide by their discovery obligations despite repeated warnings. We conclude that it did not.  Accordingly, we AFFIRM the district court’s imposition of sanctions.

BACKGROUND

In August 2021, plaintiff J.C. filed a complaint in state court alleging that defendant Robert Allen Zimmerman (AKA Bob Dylan) “sexually abused” her for a six-week period “between April and May of 1965” when she was 12 years old.  J. App’x at 16–28. She was represented by respondents-appellants Daniel W. Isaacs and Peter J. Gleason. J.C. specifically alleged that Zimmerman “befriended and established an emotional connection with [her] to lower her inhibitions with the object of sexually abusing her, which he did, coupled with the provision of drugs, alcohol[,] and[] threats of physical violence.” J. App’x at 17. J.C. filed an amended complaint on December 27, 2021, which modified the period of alleged abuse to “the spring of 1965.” J. App’x at 32. Zimmerman, represented by Orin Snyder, as well as other attorneys from Gibson, Dunn & Crutcher, LLP, removed the case to federal court.

Three sets of discovery requests went unanswered

On July 19, 2022—four days later, and only three days before all documents responsive to Zimmerman’s initial set of RFPDs were required to be produced— Isaacs informed the court that he and Gleason had been “discharged by [J.C.] as her attorneys.” Id. at 124. The court sc heduled a conference for July 28, at which it noted that Isaacs and Gleason had not properly moved to withdraw and asked them to explain the situation. Isaacs and Gleason asserted that, following the July 15 conference, they met with J.C. on or around July 18, to request that she produce additional responsive documents. The next day, on July 19, Gleason met with J.C. again at which point J.C. produced three boxes of papers, but would not permit Gleason to take the boxes with him. Gleason purportedly told J.C. that, if she did not provide him with the documents, he and Isaacs would move to withdraw as counsel or, in the alternative, she could terminate their services. After Gleason left, he and Isaacs received an email from J.C. purportedly terminating their services. 

Following this explanation, the district court reminded Isaacs and Gleason that “the real issue” was the discovery deadlines “that weren’t complied with.” Id. at 144. The court made clear that “it’s not as though the slate is wiped clean and we start again. New counsel succeeds to the state of the case that we are in now.” Id. at 159–60. After an exchange with Snyder, the court noted that it was “waiting” on “the issue of sanctions,” and that “[r]ight now, before me, [J.C. is] still [Isaacs and Gleason’s] client.” Id. at 159. The court permitted a recess for Isaacs and Gleason to consult with J.C., who was present in the courtroom, after which Isaacs advised the court that J.C. sought to withdraw her complaint with prejudice. After confirming with J.C. herself that she desired to discontinue her action with prejudice, the district court ordered that the case be dismissed and gave defense counsel a week to bring any motion for sanctions.

Sanctions against the attorneys

in determining whether Rule 37 sanctions are warranted, the district court may “weigh not only the straw that finally broke the camel’s back, but all the straws that the recalcitrant party piled on over the course of the lawsuit.” e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 643 (7th Cir. 2011).

Here, straws abound, as the record is replete with instances of Isaacs and Gleason “fail[ing] to discharge their discovery obligations under the relevant law and [the district] [c]ourt’s orders.” Special App’x at 23. Prior to violating the court’s May 24 Order, Isaacs and Gleason had already missed the original 30-day deadline to respond to Zimmerman’s interrogatories and RFPDs pursuant to Rules 33 and 34, as well as multiple extended deadlines.6 See J. App’x at 85. And despite the explicit warnings from the court in the May 24 Order and again in the June 2 Order, Isaacs and Gleason subsequently missed an agreed upon deadline for “substantial completion” of document production by June 30, 2022. Id. at 94. At the telephonic conference held on July 15 in the wake of that failure, Isaacs avowed that it was only Zimmerman’s July 1 letter that had “clued [him in]” to the possibility that J.C. could have responsive texts and emails. Id. at 105. But the district court determined that even this claim is belied by the record, which reveals that, on June 1, Zimmerman “provided [Isaacs and Gleason] with some 60 emails to or from [J.C.] that [he] had received in response to third-party subpoenas issued to [J.C.’s] relatives.” Special App’x at 20. Moreover, Isaacs and Gleason were each present for at least one deposition during which Zimmerman’s attorneys offered some of these responsive emails into evidence. J. App’x at 112–13 (Snyder noting that “Mr. Isaacs was in the deposition yesterday, and he, with his own eyes, saw – because I offered into evidence – dozens of emails with his client”); id. at 114 (Isaacs confirming “Mr. Snyder is correct, I have those emails, I saw them”); id. at 140 (Gleason discussing a “previous deposition of the plaintiff’s sister” where defense counsel produced “16 pages . . . of certain emails” of which Gleason was previously unaware). Yet, despite having seen and/or received such documents from defense counsel, and despite their commitment to complete substantially all document production by June 30, counsel made “no effort to review [J.C.’s] accounts for responsive emails or texts, and as such continued to be in violation of the [district c]ourt’s May 24 Order.” Special App’x at 21.

The record also plainly supports the district court’s conclusion that “the Agiwal factors support[] the . . . imposition of some sanction on [J.C.’s] [a]ttorneys.” Id. at 23.

The court found the sanctions were not unjust or improperly apportioned.

Lack of evidentiary hearing

While an evidentiary hearing may be desirable when further factfinding is necessary, Isaacs and Gleason have not pointed to any disputed material facts that would have impacted the district court’s decision to impose Rule 37 sanctions, a decision premised entirely on counsels’ failure to comply with their discovery obligations despite repeated warnings. See Rossbach, 81 F.4th at 138 (“[A]n evidentiary hearing serves as a forum for the district court to find facts.” (internal quotation marks omitted)). Accordingly, no hearing was required.

Sanctions

For these reasons, we conclude that the district court did not abuse its discretion in imposing a $5,000 sanction on Isaacs and a $3,000 sanction on Gleason for their failure to meet their discovery obligations in this case.

(Mike Frisch)