There are many rules that govern the participants in litigation. Some are written down and some are set forth by a judge. To ensure that people follow the rules, judges have the power to punish disobedience. Sometimes they do this on their own initiative, but sometimes other litigants ask the judge to punish someone else. These sanctions motions identify litigation misconduct and ask a judge to impose a penalty. They also mean more work and cost for litigants.

Why should you read this post about sanctions motions?

Your lawyer is litigating a sanctions motion and you want to know if something has gone wrong.
You want to know if these motions have to do with blocking financial transactions in foreign countries.
This is your punishment for missing a discovery deadline.

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Discovery Sanctions

Many sanctions motions arise in the context of discovery. This is because the court system generally relies on the parties to trust each other in the conduct of discovery. There is no judge present for depositions and the parties usually supervise their own document gathering and production. Because of this freedom from direct oversight, there is a lot of opportunity for abuse. Accordingly, parties frequently allege other people violate the rules.

When a party fails to disclose something it should have, the first step is usually for another party to move to compel. In federal court, Rule 37(a) governs motions to compel. This type of motion asks the court to issue an order directly commanding the party to make the disclosure. This isn’t a punishment yet; often it just clarifies what a disclosing party’s obligation is or rules on the validity of an objection. But after the judge makes an order to compel, a party’s continued refusal to disclose the relevant information is not just a violation of a rule, but a direct violation of a court order.

Once a party believes another person has violated a rule or a court order, it can move for discovery sanctions. In federal court, Rule 37(b)-(f) governs different types of discovery sanctions. But before moving for sanctions, Rule 37(d)(1)(B) may require the parties to attempt in good faith discuss the motion first to ensure that the parties cannot resolve the issues themselves.

Statutory Sanctions

In addition to sanctions for discovery violations, there are rules and statutes that authorize penalties against lawyers for misconduct.

Some rules require that, when a lawyer signs a document, that they represent that it is not being offered for an improper purpose and that there is factual or evidentiary support for its contents. These rules include Rule 11 in federal court and New York Court Rule 130-1.1. These rules also set forth a procedure for parties to complain to a court that another lawyer has violated the rules and seek a reimbursement for their attorney’s fees incurred because of the violation.

There are also statutes that allow parties to seek a judgement against a lawyer for misconduct. 28 U.S.C. 1927 in federal court and Judiciary Law 487 in New York. Statutes like these may authorize a litigant to bring a new lawsuit against a lawyer who commits misconduct to recover damages. And the federal statute may authorize a litigant to seek damages by making a motion.

The rules described above are separate from the penalties that the ethics committees that govern the conduct of lawyers. While lawyers and clients may submit complaints to these organizations, they usually do not award damages and instead only review and discipline lawyers.

Strategic Use of Sanctions Motions

Many litigants use sanctions motions strategically in litigation. They may identify some misconduct by opposing counsel or another person and bring a motion seeking damages to correct it. By seeking those damages, the party may obtain leverage to negotiate a settlement. In essence, it may offer to drop its claim for sanctions damages in exchange for the other side dropping or reducing its claim for damages.

Similarly, the party may claim that misconduct by another side is grounds for the court to dismiss a lawsuit separate from the merits of the case. Although this has worked, it usually only works in extreme cases.

Because of the strategic potential of sanctions motions, they arise fairly often in litigation. Parties should include the possibility of them when preparing a budget for the cost of a lawsuit.