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ruling that zealous advocacy on behalf of a client does not excuse an attorney’s belligerence during discovery, the 3d U.S. Circuit Court of Appeals reversed on Aug. 8 the imposition of sanctions against a defense attorney on the ground that the plaintiff’s counsel had made no attempt to confer in good faith prior to his motion to compel discovery. Naviant Marketing Solutions Inc. v. Larry Tucker Inc., No. 02-3201. Naviant Marketing Solutions sold a mailing list to Larry Tucker Inc., a direct- mail advertising business. In November 2000, Naviant sued Tucker for $150,000 in a Pennsylvania federal court, alleging breach of contract. In May 2001, Tucker answered two sets of interrogatories from Naviant. Naviant then demanded more complete answers, and the court directed counsel for both parties to resolve in good faith the discovery requests. Trial was set for Oct. 1, 2001, and a deposition for Tucker was scheduled. Though Tucker’s attorney had asked that the deposition be rescheduled, the plaintiff’s attorney went ahead with the deposition without the defendant being there. Naviant then filed a motion for contempt on the ground of the defendant’s failure to attend the deposition. The case went to trial, and the court awarded Naviant $165,203.66 and imposed sanctions against both Tucker and the defense attorney. The 3d Circuit reversed the sanctions order against the attorney. According to the court, an attorney may only be sanctioned if he violates a discovery order or advises a client to do so. There was no evidence that this had taken place. Moreover, the court argued, according to Fed. R. Civ. P. 37(a)(2)(A), a party moving to compel discovery sanctions must submit to the court “a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.” Naviant’s counsel had not made a good-faith effort to resolve discovery disputes prior to seeking court intervention.

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