• July 18, 2018

Photo credit: Jana M. Cisar / USFWS

We are often sympathetic to those caught in the expensive machinery that is the U.S. civil justice system. We might be the most sympathetic to those defendants whom we consider non-culpable because they, of course, are “haled into court” (see our 2013 post on the “weird word doctrine). They do not have any choice in the matter.

Imagine being sued for $1.5 billion dollars by a foreign company and then spending the better part of a year trying to depose a key former executive of the company who makes sure he is nowhere to be found (!).

Our friends at the Stinson Leonard Street law firm don’t have to imagine being in this hypothetical situation. They (along with a bunch of telcom companies) are living it.

The challenge U.S. Mag. Judge Leo I. Brisbois (D. Minn.) recently faced was what sanction to mete out on the evasive weasel who cannot be nailed down to sit for his deposition.

One part of an appropriate sanction seems obvious and simple: the weasel should have to pay the defendants’ attorneys’ fees that were spent in trying to get Mr. Barrera to sit for his deposition.

But what else should be part of the sanction?

The Court also decided that “Nicolas Barrera is hereby prohibited from offering any evidence by way of testimony or affidavit for any purpose in the present case.”

This also seems fair and warranted.

But what about the fact that Mr. Barrera is a former executive of Plaintiff Azarax, Inc.? There does not appear to have been a finding that Atarax, Inc. had any power or control over its former executive. Is it fair for Plaintiff Atarax, Inc. to suffer sanction indirectly due to Mr. Barrera’s apparent evasiveness?

The Court is in a tough spot, having one non-party so apparently deserving of a sanction and a party to the lawsuit that will bear the consequences. However, collateral damage is simply another sad but unavoidable aspect of litigation.

 

 

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