Pretrial Proc's - Sanctions

Question 1

The court may direct counsel and unrepresented parties to appear for pretrial conferences (to expedite the action, foster settlement, etc.). The court may issue sanctions (including dismissal of all or part of the action or holding parties in contempt of court) if counsel or a party:

Answer 1

Fails to appear;

Fails to participate in good faith;

OR

Fails to obey a pretrial conference order.

Question 2

Dismissal of an action is a severe sanction, and generally it is only appropriate when

Answer 2

a party’s conduct is serious, repeated, extreme, or otherwise inexcusable.

Question 3

If a party or her attorney fails to participate in good faith in the development and submission of a Rule 26(f) proposed discovery plan, then the court may, after providing an opportunity for a hearing, order

Answer 3

the party or attorney to pay reasonable expenses, including attorney’s fees, as a result of such failure.

Question 4

Rule 11b Signature

Answer 4

Every pleading, written motion and other paper served must be signed by at least one attorney of record in the attorney’s name or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number. The court MUST strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

Question 5

Rule 11b Representations to the Court

Answer 5

By presenting to the court a pleading, written motion, or other paper (whether by signing, filing, submitting, or later advocating it) an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

It is not be presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;

AND

The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 6

Rule 11b Opportunity to Correct.

Answer 6

Before a party may seek sanctions under Rule 11, the party must serve on the opposing party a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct the challenged pleading. If the 21-day period passes, and the pleading is not corrected, the motion for sanctions may be filed with the court.

Question 7

Rule 11b Sanctions.

Answer 7

The court (on motion or on its own) may issue sanctions for failing to comply with the above requirements.

The sanctions may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

Question 8

Rule 11b Imposition of Sanctions.

Answer 8

Sanctions may be imposed upon the defendants’ attorney, his law firm, and the defendants.

However, monetary sanctions for asserting an unwarranted legal contention may NOT be imposed upon the defendants, but only upon the attorney or his law firm.

Question 9

Rule 11b Purpose and Discretion.

Answer 9

The court has considerable discretion in imposing sanctions. The purpose of any sanctions award should be to deter similar future conduct by this lawyer or others.

Question 10

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be replaced through additional discovery, the court:

Answer 10

Upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice;

OR

Upon finding that the party acted with the intent to deprive another party of the information, may presume that the lost information was unfavorable, and:
Instruct the jury that it may or must presume that the lost information was unfavorable to the wrongdoing party;
Dismiss the action;
OR
Enter a default judgment.