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Attorney Personally Sanctioned After Claiming “There is No ESI”

Posted on February 11th, 2015

In modern litigation, can a lawyer ever confidently state that “there is no ESI”? That contention, along with other gross discovery abuses and misrepresentations made to a federal district court, ultimately led the Northern District of Iowa in BFC Gas Company v. Gypsum Supply Co., No C-13-0081, N.D. Iowa (Jan. 5, 2015) to impose Rule 11 sanctions against a plaintiff and its lawyer, and to personally sanction the lawyer.

Plaintiff BFC, represented by lawyer Kathlyn Barnhill, sued Defendant Gypsum for alleged damage to its building after a severe storm. Gypsum sent discovery requests, including a request for ESI, and BFC responded with a hard copy document production. Gypsum questioned attorney Barnhill about the absence of electronically stored information, to which Barnhill responded that, “upon checking again, there is no ESI. There simply is none. All communications were by phone.”

Gypsum moved to compel. The court granted the motion and imposed a new deadline to produce additional discovery and ESI. BFC produced no additional discovery responses, and Gypsum filed another motion to compel, which included evidence that BFC regularly conducted business by email and text messages. The court granted the second motion to compel and Gypsum filed a motion for sanctions seeking dismissal. The court did not dismiss the action, but ordered Plaintiff to pay Defendant’s attorneys’ fees. Attorney Barnhill made several false statements regarding BFC’s ESI at the hearing.

The court subsequently ruled in favor of Gypsum on summary judgment, and Gypsum filed a second motion for sanctions. The court reviewed the sanctions motions by considering multiple federal rules:  FRCP 37(a)(5), which requires the court to order attorneys’ fees if a motion to compel is granted unless otherwise unjust, and FRCP 37(b)(2)(C), which mandates attorneys’ fees when a party fails to comply with a court order. The court held the following:

  • BFC and Barnhill jointly and severally liable for $12,576 pursuant to the first motion for sanctions.
  • Barnhill personally liable for $18,365 for the misrepresentations made during the sanctions hearing.
  • BFC and Barnhill jointly and severally liable for $20,000 for filing a frivolous lawsuit in violation of FRCP 11.

ILS – Plaintiff Electronic Discovery Experts

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