Lelsz v. Kavanagh

137 F.R.D. 646, 1991 U.S. Dist. LEXIS 9463, 1991 WL 127181
CourtDistrict Court, N.D. Texas
DecidedMay 20, 1991
DocketCiv. A. No. 3-85-2462-H
StatusPublished
Cited by5 cases

This text of 137 F.R.D. 646 (Lelsz v. Kavanagh) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lelsz v. Kavanagh, 137 F.R.D. 646, 1991 U.S. Dist. LEXIS 9463, 1991 WL 127181 (N.D. Tex. 1991).

Opinion

[648]*648MEMORANDUM OPINION AND ORDER

SANDERS, Chief Judge.

Pursuant to the Court’s Order entered April 25, 1991, a hearing was held on May 10, 1991 to determine whether sanctions should be imposed upon Defendants’ lead attorney in this case, a Texas Assistant Attorney General (the “Assistant AG”). For the reasons stated below, the Court finds a pattern of misconduct on the part of the Assistant AG that merits sanctions. Over the past five months, the Court has repeatedly chastised Defendants’ counsel and issued warnings regarding conduct violative of the Court’s decision in Dondi Properties Corp. v. Commerce Savings and Loan Ass’n, 121 F.R.D. 284 (N.D.Tex.1988) (en banc). Despite these warnings, the Assistant AG persisted in using litigation tactics that prejudiced the rights of her adversaries and undermined the administration of justice in this Court.

The Assistant AG is a zealous and tireless advocate for her clients. Her conduct in this litigation over the past several months, however, has been characterized by ad hominem attacks on counsel representing Plaintiffs and Plaintiff-Intervenor Advocacy, Inc.; motions filed in bad faith; a lack of candor with the Court; last-minute “drop everything” filings of motions requiring immediate action by the Court and preventing responses by her opponents; and obstructionist conduct that has wasted the resources of the Court’s Expert Consultant, Dr. Linda R. O’Neall,1 and compelled the Court to sever issues from a hearing scheduled for May 28, 1991. In light of this pattern of conduct, the Court has decided to remove the Assistant AG from further participation in this litigation.

I. Facts.

By motion filed December 5, 1990, Defendants sought protection from depositions of several Texas Department of Mental Health and Mental Retardation (“TDMHMR”) officials that had been noticed for December 6, 1990.2 In a Memorandum Opinion and Order entered December 5, 1990, the Court denied the requested protective order, but noted that the request had been made even though Defendants’ counsel knew that two of the TDMHMR officials would be out of the state at the time their depositions were noticed, and that the Court was not informed of their absence until the morning the Order was issued. See Memorandum Opinion and Order entered December 5, 1990, at 5. Not explicitly mentioned in the December 5 Order, but worthy of comment in light of subsequent events, is the fact that Defendants’ counsel had telephoned the Court several days earlier, requesting informal leave to file the motion at last minute because of pressing personal problems and an overwhelming caseload. Although she knew of the TDMHMR officials’ absence from Texas before filing the December 5 motion, Defendants’ counsel gave the Court no warning, choosing instead to spring the information on the Court to effectively, if temporarily, defeat the Court’s denial of the requested protective order.

In the December 5 Order, the Court found that Defendants’ counsel’s conduct “reveal[ed] a troubling disdain for the Court and the discovery process.” Id. The incident also revealed a complete lack of candor and a failure to diligently inform the Court of a material fact. The Court stated that “[i]t is distressing for the Court to make efforts to accommodate the parties’ requests for expedited consideration [649]*649of motions, extensions of time, and special consideration of the circumstances of counsel, only to be blind-sided by [Defendants’] last-minute notification of deponents leaving town.” Id. The Court lamented “the parties’ attorneys’ apparent eagerness to quarrel over almost every aspect of discovery” and concluded by stating that “[t]he parties and their counsel are reminded that the Court has other cases before it that merit time and attention and that the Court’s ruling in Dondi Properties Corp. v. Commerce Savings and Loan Ass’n, 121 F.R.D. 284, 284-96 (N.D.Tex.1988) (en banc), shall be rigorously enforced in this action.” Id.

At the May 10 hearing, the Assistant Attorney General conceded that she knew of the TDMHMR officials’ absence from the state before filing the motion, yet contended that the motion was filed in good faith. The Court finds that the December 5, 1990 motion was filed in bad faith and in violation of the Court’s ruling in Dondi Properties Corp. v. Commerce Savings and Loan Ass’n.

On Friday, February 1,1991, Defendants’ counsel again filed a last-minute motion seeking to prevent the Expert Consultant, Dr. Linda R. O’Neall, from conducting on-site reviews of interim measures3 at the Austin State School, Fort Worth State School, and San Antonio State School.4 The reviews were scheduled to begin the following Tuesday, so relief had to be granted, if at all, no later than Monday, February 4, 1991. See Memorandum Opinion and Order entered-February 4, 1991, at 1, 2 (stating that “Defendants request immediate relief from the Court, and by filing this motion at the last minute the Attorney General effectively guaranteed that Plaintiffs and Intervenor PART would be disadvantaged in preparing their responses”). In denying the motion, the Court noted that

despite weeks—actually, months—of notice as to when the interim measures reviews would begin, the Attorney General chose to spring this motion on the parties and the Court the day before it must be decided.
The Court finds particularly disturbing the annoyance and burden Defendants’ request inflicts upon the Expert Consultant, her staff, and the experts she brings to Texas for the interim measures reviews. Indeed, the timing of the present motion constitutes treatment of the Expert Consultant that can only be characterized as unprofessional, oppressive, and rude.

Id. at 3. The Court then briefly recounted the events of the previous December, and once again cited the Court’s decision in Dondi. See id. at 4-5. The Court denied Defendants’ motion to prevent the Expert Consultant’s on-site reviews because it found the motion was filed in violation of the Dondi standards. See id. at 6.

Although Defendants’ counsel subsequently stated that she “did not intend to act in a manner which could be interpreted by the court or perceived by the Expert Consultant as ‘rude, oppressive and unprofessional’ ”, Defendants' Response to the Court’s Order of February 4, 1991, filed February 11, 1991, at 1, the Assistant AG neither apologized for her conduct nor, it appears, consulted Dondi. Also, while Defendants’ counsel stated that she waited until the last moment to file the motion “to conserve judicial time”, her Response conceded that “Defendants’ attorneys admittedly could have filed their motion [on December 28,1990].” Id. at 2. Furthermore, unlike the December incident, in this case Defendants’ counsel did not even bother to [650]*650telephone the Court with informal notice of her intent to file the February 1 motion.

At the May 10 hearing the Assistant AG stated that the motion was filed in good faith and with the hope of an immediate and favorable response by the Court. The Court finds that the February 1 motion was filed in bad faith and in violation of the standards of attorney conduct adopted by this Court in Dondi Properties Corp. v. Commerce Savings and Loan Ass’n.

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137 F.R.D. 646, 1991 U.S. Dist. LEXIS 9463, 1991 WL 127181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lelsz-v-kavanagh-txnd-1991.