Judge Castel (NYLJ/Rick Kopstein)
He suggested she tone it down. She called him an “a**hole.”
This is the sort of exchange that regularly makes its way into matrimonial litigation. But Alexander Interactive v. Adorama Inc., 12-cv-6608, isn’t a divorce case, and the squabbling adversaries aren’t husband and wife.
Rather, they are opposing counsel in a business dispute—one of whom got a judicial scolding and a stern suggestion that she heed the rules on professional civility.
In a decision last week, Southern District Judge P. Kevin Castel (See Profile) embraced a magistrate judge’s order admonishing and cautioning attorney Denise Savage of White Plains, and giving little credence to Savage’s complaints that her opponent, Daniel Brown of Reiss Sheppe, had provoked her.
“In the realm of professional conduct, provocation is, at most, a mitigating circumstance and not a complete defense to wrongful conduct; the same is true under the Federal Sentencing Guidelines, and the rules of the Fifth Grade classroom,” Castel wrote.
In the underlying case, Savage is defending a corporation against a claim for breach of contract, defamation and misappropriation of proprietary software. Brown represents the plaintiff.
But Francis said Savage went too far when, in an email to Brown, she called him an “a**hole,” implicitly threatened or warned him with another invective, accused him of unethical behavior and pretended that she had surreptitiously tape recorded a conversation.
Francis noted that Savage apologized for her conduct, and the judge suggested that “in the clear light of day, she might have used better judgment and pressed ‘delete’ instead of ‘send,’” noting that the offending email was sent at 12:22 a.m.
On the other hand, Francis said Savage’s “contrition is undercut by her attempt to deflect blame to her adversary.” He acknowledged that both counsel have occasionally gotten testy during pretrial examinations, but said that “Brown’s most strident behavior was to tell Ms. Savage, ‘Enough.’”
Further, Francis said, if Savage had indeed made a secret tape recording—she now contends that there was no recording, only an order “to compel honest conduct by Mr. Brown”—she would likely have been in violation of the New York Rules of Professional Conduct.
“This … is in itself an acknowledgment of having engaged in deceit and misrepresentation,” Francis wrote.
In the June 26 order, Francis simply cautioned Savage, and admonished her to behave as the case proceeded. Savage, however, objected to his report, which led to Castel’s decision last week.
“Ms. Savage did not prejudice the administration of justice simply because her e-mail employed coarse language,” Castel wrote. “She did not prejudice the administration of justice because she manifested a dislike of opposing counsel. She did prejudice the administration of justice because she hurled a personal invective at opposing counsel and a warning or threat.”
Castel said Savage suggested she would expose Brown’s allegedly unethical conduct if he didn’t cooperate, pretended she had recorded conversations with him, engaged in “abusive litigation conduct,” and attempted to shift the blame to her adversary, “yet the magistrate judge let the matter go with a caution and admonishment.”
In an interview, Savage acknowledged her comments to Brown were “inappropriate, immature” and came in a “weak and tired moment.” But she said she is being singled out for admittedly uncivil conduct while Brown has not been called to task for his own misconduct in the case. She said Brown has repeatedly yelled at her and told her to “shut up.”
Savage also alleged that Brown and his client destroyed evidence, but said there was no consequence because the magistrate judge did not find bad faith.
She suggested that Brown gave the court her uncivil email to deflect attention from his own misconduct. “I certainly don’t justify what I did,” she said. “It was very poor judgment on my part. But the unethical behavior in this case by Mr. Brown and his client is extraordinarily troubling.”
Savage said her fib about recording a conversation “was an attempt to keep this guy [Brown] honest, as misguided as it was.”
Brown said the decisions of Francis and Castel speak for themselves and declined further comment.