Reliance on Caselaw Analyzing Prior Version of Rule 26 “Inexplicable” and “Inexcusable,” Sanctions Imposed

Fulton v. Livingston Fin., LLC, No. C15-0574JLR, 2016 WL 3976558 (W.D. Wash. July 25, 2016)

In this opinion, the court imposed sanctions for counsel’s misrepresentations of law and fact, including his citation to caselaw analyzing outdated standards under Fed. R. Civ. P. 26(b)(1), which was substantially affected by the December 2015 amendments. Calling counsel’s reliance on caselaw applying outdated standards “inexplicable” and “inexcusable” where the “December 1, 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) ‘dramatically changed’ what information is discoverable,” the court ultimately imposed monetary sanctions (payment of Plaintiff’s fees and costs for defending the at-issue motion) and ordered counsel to supply “senior members” of his firm with the “offending brief” with the explanation that “the court is entering sanctions . . . for quoting provisions of the civil rules that are badly out of date, and also making direct misrepresentations to the court.”  Declining to also require the attorney to report the sanction on future pro hac vice applications, the court did order that if a federal court threatened or imposed sanctions on the attorney at any time in the next five years, the attorney must “immediately disclose to that court the sanctions imposed by this court by providing that court with a copy of this order and the offending briefing.”

As illustrated by this opinion, the importance of reviewing, understanding, and applying the appropriate standards under the newly-amended rules cannot be overstated. To that end, please note that the rules affected by the December 1, 2015 amendments are: 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, 84 & the Appendix of Forms.  The current rules and their informative Committee Notes are available here:

A full copy of the court’s opinion is available here.

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