Plaintiff’s Attorneys Sanctioned

Plaintiff’s Attorneys Sanctioned for Discovery Noncompliance: eDiscovery Case Law

In J.C. v. Zimmerman, No. 22 Civ. 323 (KPF) (S.D.N.Y. Sept. 28, 2023), New York District Judge Katherine P. Failla granted defendant’s motion in part, which resulted in plaintiff’s attorneys sanctioned for their repeated noncompliance with the Court’s discovery orders. She also granted plaintiff’s attorneys cross-motion for withdrawal from the case.

Case Background

In this case where the plaintiff alleged child sexual abuse occurring nearly six decades earlier by defendant Robert Allen Zimmerman (known professionally as Bob Dylan), the Defendant responded to the lawsuit, by calling it a “a brazen shakedown masquerading as a lawsuit … filed in bad faith for the improper purpose of extracting a huge payout on the threat of negative publicity.”


Discovery disputes arose shortly after the initial pretrial conference. Plaintiff missed a discovery deadline and the court issued a cautionary order that future missed deadlines would not be tolerated, then plaintiff failed to respond to defendant’s requests for production of documents in time, getting a second warning.

On June 1, 2022, one day after Plaintiff’s responses were submitted, Defendant produced approximately 60 emails to or from Plaintiff that he had received during third-party discovery. Most of the emails were exchanged with Plaintiff after her initial complaint was filed in New York State Supreme Court, and before the removal of her case to this Court. As Judge Failla stated: “The Court has reviewed the emails, and without going into the specifics of their content, the Court agrees with the defense that they call into question the veracity of Plaintiff’s allegations in her complaint.”

By the agreed upon production deadline, Plaintiff had produced only 49 pages of documents, omitting numerous emails that defense counsel knew existed because of their June 1 production. To Defendant, Plaintiff’s “token production [made] under the wire” was indicative of inadequate pre-suit investigation by Plaintiff’s attorneys. After a conference of the parties led to new production deadlines being set by the court, plaintiff’s attorneys claimed that they had been “discharged by the Plaintiff as her attorneys”, but defendant protested, noting Plaintiff’s noncompliance with the Local Rules of this Court regarding attorney withdrawals.

That led to another conference where the making clear to Plaintiff’s Attorneys that it did not believe that they had been discharged, that it recalled the commitments made and deadlines set just a few days earlier, and that it did not appreciate feeling as though it had been “played.”

Defense counsel offered a protocol that addressed the Attorneys’ withdrawal and the continuation of the case, one that included sanctions on Plaintiff and her Attorneys, as well as a forensic examination of Plaintiff’s devices. defense counsel theorized that the Attorneys had deliberately refrained from discharging their discovery obligations in this case (in terms of both gathering and producing discovery) because “if they did it would blow a gaping hole in their client’s case. So they slipped out the back rather than accept and assume responsib[ility] for two things: a violation of the order and this lawsuit, in the first instance.”

Ultimately, after consulting with Plaintiff during a recess in the proceedings, [plaintiff’s attorney] advised the Court and Defendant that Plaintiff sought to withdraw her complaint with prejudice. Defendant then moved for sanctions under FRCP Rule 37(b)(2)(A).

Judge’s Ruling

In considering the sanctions motion, Judge Failla stated: “In several respects, Defendant’s motion for sanctions is unusual. For starters, it is brought only against Plaintiff’s Attorneys, and not against Plaintiff herself, even though the record suggests that a portion of the Attorneys’ noncompliance may be attributable to Plaintiff… The Court imagines that Defendant’s decision not to pursue sanctions against Plaintiff is a kindness to her, and the Court appreciates it as such.”

Continuing, she stated: “Plaintiff and her Attorneys lobbed heinous accusations of sexual abuse at Defendant, prompting widespread news coverage of her lawsuit. And yet Plaintiff refrained from producing nearly all of her responsive materials in discovery, and what evidence the Court has seen thus far undermines Plaintiff’s allegations. Quite apart from the obvious reputational harm, Defendant has been forced to expend substantial sums of money in litigation defense costs. Finally, the Court recognizes that Rule 37(b) has both specific and general deterrence functions, in service of its ultimate goal of promoting compliance with court orders.”

In granting the motion for sanctions in part, Judge Failla stated: “The Court finds that the Attorneys’ noncompliance was willful. In this setting, ‘[n]oncompliance with a court’s discovery order is willful when the order is clear, the party understood the order, and the failure to comply is not due to factors beyond the party’s control.’… the procedural history of this case makes clear that the Attorneys’ noncompliance with the Court’s orders persisted over a period of weeks, if not months, in the face of numerous warnings from the Court.”

However, the two plaintiff’s attorneys were sanctioned $5,000 and $3,000 respectively, not the $50,000 that the defendant sought. As Judge Failla stated: “The Court observed firsthand the challenges that Plaintiff posed as a client, and is confident that Plaintiff’s Attorneys’ noncompliance is at least partly attributable to her. While it might have behooved everyone in this litigation for Plaintiff’s Attorneys to have conducted a more robust pre-suit investigation, or to have ensured ex ante that Plaintiff understood and was willing to comply with her discovery obligations, that is beyond the scope of this Rule 37(b) motion.”

So, what do you think? Do you think it made sense that the plaintiff’s attorneys were sanctioned, but not the plaintiff? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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