Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.