Defense counsel was sanctioned by a federal court in Washington for bringing a motion to compel in bad faith, with the court finding that defense counsel’s citation of case law analyzing a prior version of the Federal Rules of Civil Procedure was “inexcusable.”

In Fulton v. Livingston Fin. LLC, (W.D. Wash.), Defendants cited case law analyzing the version of Federal Rule of Civil Procedure 26(a)(1) that existed before the widely broadcasted amendments to that Rule took effect near the end of 2015. Rule 26 governs the type of information that should be produced in discovery, and includes a list of elements for attorneys to contemplate when determining if a discovery request is proportional to the demands of the case.

In Fulton, Defendants had moved either to compel discovery or exclude certain medical evidence Plaintiff wished to present at trial.  Initially, the court found that found Defendants’ argument for seeking this information was unreasonable and constituted a misrepresentation to the court.  The court noted that the amendments to Federal Rule of Civil Procedure 26(b)(1) “dramatically changed” what information is discoverable, and therefore defense counsel’s citations to outdated case law was a misrepresentation that warranted sanctions.

Although defense counsel argued that the amended version of Rule 26 may not be applicable, the court found that the amendments apply to all proceedings pending as of the effective date of the new Rule insofar as it is “just and practicable.”  Therefore, the court concluded that defense counsel had misrepresented the scope of discoverable information when he failed to note the proportionality standard, but instead used the outdated law.

The court then ruled that it had an inherent power to sanction if it specifically found bad faith or conduct tantamount to bad faith, regardless of whether a specific court order was violated.  Because the court found that defense counsel recklessly misrepresented the law and the facts to the court in an effort to limit Plaintiff’s evidence at trial, sanctions were appropriate.

The sanctions were significant as they came in two forms.  First, the court imposed a cost and fees award, and also directed the sanctioned attorney to provide the offending briefing to his senior firm counsel along with an explanation that he was being sanctioned for citing “badly out of date” law.  Second, the attorney was subject to a potential future disclosure requirement designed to deter future transgressions.  These punishments, “strikes one and two”, were imposed to punish counsel as well as sufficiently inform future courts to properly sanction any further bad faith conduct.

This case vividly demonstrates how important it is for attorneys to stay abreast of changes in the Federal Rules of Civil Procedure as well as substantive law, or else face the real possibly that courts will punish those attorneys who fail to do so.