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11th Circuit Affirms Sanctions Award Against Lawyer Who Allegedly Surreptitiously Photographed documents belonging to the opposing party.

This case is newsworthy.The 11th Circuit affirmed a contempt finding against a lawyer who allegedly wrongfully procured evidence from the defendant. The Court set forth the facts as follows:

Attorney Sandra Finch represented Elane Armstead in Armstead’s lawsuit against Allstate Property & Casualty Insurance Company. In the weeks leading up to trial, Finch, on Armstead’s behalf, filed a motion in limine to exclude or strike the deposition testimony of Allstate’s fact witness Mark Gould. Allstate filed a response in opposition that, among other things, described what happened during Gould’s deposition, which it supported by citing the deposition transcript and Gould’s affidavit. The transcript showed that during the deposition Finch handed Gould page-by-page photographs of a document titled “Steamatic Guide to Restoration Services” (an outdated company document) and that when Gould asked Finch where she had found that document, Finch refused to answer. Gould in his affidavit stated that he “got very upset when it became apparent [that Finch] had obtained the document from my office without my permission.”

The photographs of the Steamatic Guide were not the only photographs Finchshowed Gould during his deposition. At one point she handed Gould a photograph of the inside of his office, but refused to explain where she had gotten the picture. Gould accused Finch of trespassing, at which point Finch responded, “I caution you on defaming me, because if you defame me, I can promise you it will not be good.”

On July 1, 2016, the district court entered an order denying Armstead’s motion in limine and instructing Finch to “file, on or before July 5, 2016, a sworn affidavit stating, in detail, how and under what circumstances she obtained the photographs of Mr. Gould’s office and the Steamatic Guide in question.” Finchresponded to that order on July 5 by filing objections based on lack of notice, due process, and relevance. On July 6 the district court entered an order overruling Finch’s objections and instructing her to file the affidavit “on or before 5:00 p.m. EST today, July 6, 2017” because “the matters required to be addressed in the affidavit may impact the admission of evidence at trial.” Finch did not file the affidavit by that deadline.

The next morning (July 7), the district court held a pretrial conference. Finch and Allstate’s counsel attended, and Finch explained that she was traveling by plane when the district court entered its July 6 order and was unable to file her response by the 5:00 deadline. Finch stated that she needed additional time to respond to the court’s order and that she objected to that order on due process grounds, explaining that “I really don’t understand what the complaint is or what it is that I’m responding to.” The district court clarified that Finch was to file an affidavit providing the source of the photographs because that information “may well impact the admissibility” of those documents at trial. The district court then told Finch that she would be permitted “a little more time today to provide the information.” At 5:07 that evening, after Finch had not filed the affidavit, the district court entered an order directing her to show cause why it should not hold her in contempt and impose sanctions for failing to follow its July 1 and July 6 orders.

On July 11, after the first day of trial had ended, the district court held a hearing on its show cause order and, at that hearing, Finch argued for the first time that she had not filed the affidavit based on her Fifth Amendment right against self-incrimination. The district court did not impose sanctions at that hearing and scheduled a second sanctions hearing to give Finch time to retain counsel to represent her in the matter. At the second sanctions hearing Finch, through her attorney, reiterated that she had not filed the affidavit based on her Fifth Amendment right.

A few days after that second hearing, the district court entered an order finding that Finch had acted in bad faith by refusing to comply with its July 1 and July 6 orders. It decided to exercise its inherent power to sanction Finch by ordering her to pay Allstate’s attorney’s fees incurred by its participation in and preparation for both the pretrial conference (nearly all of which was spent discussing Finch’sfailure to comply with the July 1 and July 6 orders) and the first sanctions hearing. The court ordered Allstate to submit to it the amount of attorney’s fees it had incurred in connection with those two hearings. Allstate submitted the calculation of its attorney’s fees, and the district court entered an order directing Finch to pay Allstate $1,548 in attorney’s fees. This is Finch’s appeal of the district court’s orders imposing sanctions based on her non-compliance with its July 1 and July 6 orders.

The district court sanctioned the lawyer pursuant to its inherent authority. The 11th Circuit affirmed the order of the discovery sanction. It held that Finch acted in bad faith in failing to comply with the July 1 and July 6 orders.

Comment: I’m surprised that the lawyer did not face further consequences for this apparent wrongful act. Perhaps there will be further developments.

Source: Armstead v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Court of Appeals, 11th Circuit 2017 – Google Scholar

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