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Attorneys for Herrick Feinstein and the New York law firm’s union clients were hit with the ultimate sanction Tuesday, as a Southern District of New York judge found that serial abuse of the discovery process merited awarding a case to their opponent, the Metropolitan Opera. Saying lawyers with the firm “completely abdicated their responsibilities” in a two-year discovery fight, Judge Loretta A. Preska found for the Metropolitan Opera on defamation and other claims brought against Local 100, Hotel Employees and Restaurant Employees International Union. The suit filed by the Met, Metropolitan Opera Association Inc. v. Local 100 Hotel Employees and Restaurant Employees International Union, 00Civ. 3613, claimed that Local 100 — which is seeking to organize employees of a private company that serves as the opera house’s food service provider — distributed phony literature, threatened to involve directors and patrons in the dispute, encouraged a boycott on contributions to the organization and interfered with public funding. Tuesday, in a 148-page opinion accusing union officials of lying to the court, Judge Preska said she also was awarding attorney fees to the Met, which a lawyer for the opera house said were “substantial.” The decision tracks the discovery process on the “watch” of different attorneys: Herrick partner James A. Moss, union in-house counsel and later Herrick associate Joseph J. Lynett, Herrick associate Marianne Yen, and Michael T. Anderson of Davis Cowell & Bowe in San Francisco. The judge said the lawyers “repeatedly represented” to the court that the Met’s request for documents had been honored “when, in fact, a thorough search had never been made and counsel had no basis for so representing.” The lawyers “knew the Union’s files were in disarray,” she said, but failed to force their clients to adopt a document retention policy, with the ultimate result being the “wholesale” destruction of both paper and electronic documents. The judge also said lawyers failed to interview key witnesses about documents until the night before depositions, and that one lawyer even “lied to the Court about a witness’ vacation schedule in order to delay the witness’ court-ordered deposition.” While the judge noted that individually the discovery failures “would not ordinarily move a court to impose the most severe sanction,” she said that “the combination of outrages perpetrated by the Union and its counsel” warranted the rarely granted remedy because the “abuses” prejudiced the Met’s ability to prepare for trial. Herrick had argued before the judge that a showing of prejudice to the Met was essential to any decision to order sanctions, but Preska disagreed. “We respect Judge Preska as a jurist but we disagree with her factual analysis as well as with her application of the law,” Moss said Tuesday. “We intend to vigorously pursue an appeal of her ruling.” Sharon E. Grubin, general counsel for the Metropolitan Opera Association Inc. and a former magistrate judge in the Southern District of New York, said the opposing lawyers “made it impossible” for her side to get the documents needed for depositions and trial, and “lied about what documents existed and what documents didn’t exist.” “So many lawyers and litigants think the discovery rules are just something to get by on,” she said. “We are gratified by the judge’s very thoughtful and thorough decision and for her courage to call it as it is.” As someone who came to the bench from private practice, Preska said she was no stranger to the “hurly-burly of the discovery process in a hotly-contested civil case.” ‘THE FIRST SPITBALL’ “I am certainly familiar, both from practice and from my time on the bench, with discovery disputes that devolve into arguments about which child threw the first spitball,” she said. “The discovery process in this case, however, transcended the usual clashes between adversaries, sharp elbows, spitballs, and even Rambo litigation tactics. This case was qualitatively different.” The judge ordered both sides in the case to confer and then appear before her on Feb. 10. Deborah E. Lans of New York’s Wasserman Grubin & Rogers, and Charles A. Stillman and Catherine Easterly of New York’s Stillman & Friedman were outside counsel for the Metropolitan Opera Association.

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