A magistrate judge has vacated his $500-a-day sanction against an assistant county attorney, acknowledging "ambiguity" in the sanction order's wording and the "professional manner in which this action has been subsequently handled."

Eastern District Magistrate Judge E. Thomas Boyle (See Profile), sitting in Central Islip, slapped Assistant Nassau County Attorney Andrew Scott with the sanction in March, saying the attorney "stonewall[ed]" discovery demands in a pending civil rights action by not turning over "a single document" (NYLJ, April 4).

But in a July 24 decision, Boyle vacated his previous order in Smith v. County of Nassau, 10-cv-4874, after a motion for reconsideration from the county, which argued it had given documents to the plaintiff's attorneys at the Law Offices of Frederick K. Brewington in Hempstead prior to their sanctions motion. Still, the county said the plaintiff's attorneys "misrepresent[ed]" discovery failures to the court, an assertion disputed by Brewington's office.

The county also compared the order, which stated the daily sanction "shall apply in the event that the County Defendants continue to fail to fully comply" with an earlier court order that appeared to offer it "a period of time within which to bring itself into compliance." The county added that it had since come into full compliance with discovery demands.

Boyle refused to resolve the factual dispute as to when documents were produced, saying sanctions arose from Scott's "willful failure" to comply with court orders, something to which Scott "readily admitted."

But Boyle said he was "concerned with this choice of language and agrees that this language is more appropriate to a situation where a party is afforded a limited grace period to comply without incurring any sanctions."