What surprised me most about this opinion was the very last line.
The opinion itself is savage. Savage. It affirms the imposition of $10,000 in discovery sanctions against a law firm -- The Vanderpool Law Firm (in Seal Beach) -- notwithstanding the firm's argument that it can't be sanctioned because it substituted out of the case before the motion to compel was filed.
The opinion is undeniably correct on the merits: Lawyers and law firms can be sanctioned for, as here, the underlying (sanctionable) discovery responses that led to the motion to compel even if they substitute out before the resulting motion is actually filed.
But the interesting part of the opinion is just how relentless it is in insulting the underlying lawyer, Douglas Vanderpool.
I would literally have to retype the whole thing to impart an accurate impression of just how pervasively the Court of Appeal publicly shames the underlying attorney, who also represents his firm on appeal. But here are some sample quotes, just to give a sense:
"Vanderpool indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers. As the discovery referee held, and the trial court confirmed, Vanderpool’s precipitate exit from its representation of at least Bauche did not insulate it from these sanctions for its prior discovery misuse."
"At oral argument, Vanderpool proffered another argument, one not mentioned or even alluded to in either of its appellate briefs. This was that the breakdown in the attorney-client relationship – which ultimately caused the firm to substitute out – was responsible for the boilerplate supplemental responses and therefore supplied “substantial justification” for stonewalling discovery. We find it odd that such an important explanation for Vanderpool’s discovery misuse – almost the exclusive explanation at oral argument – should have been reserved for that occasion."
"The [discovery] referee also had a few words to say about Vanderpool’s including a letter from some members of Congress regarding Masimo’s CEO as part of its opposition to the request for sanctions against it, in an effort “inappropriately to prejudice discovery referee and the Court with irrelevant allegations of misconduct[.]” The words were “shameful” and “cannot be tolerated.”"
"In fact, the responses to the document production requests were so boilerplate that the individual responses began “Responding Party objects to this interrogatory . . . .” Only intermittently did these responses refer to a “request for production.”"
"This court has in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades. . . . Evidently Vanderpool’s principal attorney, Douglas Vanderpool, did not get the memo. We have quoted above from the condescending email he sent to Masimo’s counsel, Robert Ellison, expressing the firm’s refusal to meet and confer. After being served with the moving papers for the motion to compel, Douglas Vanderpool began an email to Ellison with the subject line “You are joking right?” The body of the email continued in the same vein: “In 30 years of practice this may be the stupidest thing I’ve ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.”
"Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports."
Wow.
Here's what really got me, though.
I'm going through the opinion, reading all these incredibly bench-slapping lines (of which there are plenty more), and I'm thinking to myself: "Who's writing this thing?" (Unlike in federal court, in the Court of Appeal, the author's always listed on the last line, and I never skip ahead. I like the suspense.)
I have my suspicions, of course. There are some justices who are occasionally/sometimes/often harsher than others, so I'm thinking it's probably one of them.
Then I get to the last line.
Justice Bedsworth.
Whoa.
He was most definitely not one of my initial suspects. Does he feel strongly about various things? Of course. But the type of harshness you see here is not his usual forte.
Four conduct has to really hack off the Court of Appeal to get an opinion like this one, and from a justice like this one, no less.
Hopefully people will learn the underlying lesson. Be civil. Don't write emails like the one described in the opinion.
Or really bad -- and/or embarrassing -- things may well happen to you. Like here.
