For meting out true justice the coveted Security for All Simon Award goes to JAMES C. FRANCIS IV, United States Magistrate Judge for his ruling on Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009). The Simon Award takes it’s name and inspiration from the classic 1980 Alan Arkin film Simon wherein Prof. Simon Mendelssohn (played by Arkin) who was abandoned at birth is convinced by a shadowy group of rogue scientists that he is of extraterrestrial origin. He then escapes and attempts to reform American culture by overriding TV signals with a high power TV transmitter, becoming a national celebrity in the process. Along the way he convinces congress to pass a law requiring that lawyers who lose cases receive the same punishment as their clients.
DIGRESSION: There is a scene in which Simon is regressed to the state of an amoeba using sensory deprivation as part of the brainwashing and then re-evolves back into a human [to “Also sprach Zarathustra” of course], including “religious repression and accompanying guilt”, that is truly classic.
The Electronic Discovery Law Blog describes the case that compels us to present the prestigious Simon Award to Judge Francis as follows.
Upon one of the defendant’s revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions. Finding that the defendant and counsel violated their duty to preserve evidence, the court authorized additional discovery and awarded plaintiff his costs, including attorney’s fees, to be paid by the defendant and her counsel.
Addressing culpability, the court found that the defendant and her counsel had been “at least negligent” in failing to implement a litigation hold, properly search for documents, and supplement discovery responses.
Finding some sanctions were warranted, the court authorized further discovery, including further deposition of the defendant, and awarded the plaintiff costs and attorney’s fees, in an amount to be determined, to be allocated between the defendant and her counsel. Interestingly, the court offered the defendant and counsel the opportunity to work out the allocation between them, and to involve the court only if necessary.
Hurrah for justice! I’m not into lawyer bashing (much) but I have to admit that when a lawyer gives bad counsel or, as is most likely in this case, goes along with their client’s hare-brained scheme to bamboozle the court it’s refreshing to see them get spanked. I just wonder how that “opportunity to work out the allocation between them” part is working out.