On Friday, July 24th, 2009, I received by mail a copy of a subpoena issued by Paul Peterson, attorney for Boris Parker and his past law firms (Saliterman & Siefferman and Bassford Remele). The subpoena was directed to Robert Smith, attorney for the original Corporate plaintiff (in the earlier litigation). It demanded production of my settlement agreement with that party from Robert Smith by the following Monday at 10:00am.
On Monday I served a motion to quash the subpoena by fax to Robert Smith and Paul Peterson before 9:30am. However, the settlement agreement had actually been produced on Friday at 10:44am.
Counsel for the Parker Defendants thus knew all the details of that settlement, including the amount, whether or not these details were actually subject to discovery (I was never able to be heard on my motion to quash). I believe the settlement amount is not discoverable, and possibly some of the other terms. Counsel for the Parker Defendants indicated they planned to incorporate the document into their memo supporting dismissal, over my objections, but said they would redact the settlement amount. I scheduled a motion for sanctions for violation of Minn. R. Civ. P. 45.01(e) for Monday, July 17th, at 8:30am.
On Wednesday, July 29th, they sent an un-redacted copy of the settlement agreement to the other defendants, Morgan Smith and Vladimir Kazaryan. Below is a link to my memorandum of law supporting my motion for sanctions.
Memorandum of Law supporting Plaintiff's Motion for Sanctions under Rule 45.01(e)
Previous sanctions against Lind Jensen
I'm not sure if it's unusual for a given law firm to be sanctioned, but Lind Jensen was ordered to pay $20,000 in sanctions under Minn. R. Civ. P. 11.02 (reversed on appeal, see below). The sanction was based on their denial of a claim against their client, even after the client admitted (upon deposition) the elements of liability. They appealed it, and the Minnesota Court of Appeals found:
We cannot conclude that after its client admitted the elements of breach of fiduciary duty, Lind Jensen could continue to have an objectively reasonable basis for denying the claim.
Lind Jensen argues that it is an attorney’s job to be a “zealous advocate” and that to require an attorney to ensure that a denial has legal and factual support would make an attorney the “finder of fact.” But this is essentially what rule 11 does: it imposes on counsel an “affirmative duty” to investigate the factual and legal underpinnings of a pleading. Uselman, 464 N.W.2d at 142; see also Fed. R. Civ. P. 11 1993 advisory comm. cmt. (stating that rule 11 requires attorneys and pro se litigants “to ‘stop-and-think’ before initially making legal or factual contentions”)....the firm knew that there was no legal or factual basis for denying the Gibsons’ claim for breach of fiduciary duty.
...Although we agree with the district court that Lind Jensen’s conduct violated rule 11 and we do not take issue with the district court’s calculation of the [$20,000] sanction, we nonetheless reverse imposition of the sanction because the Gibsons did not satisfy the 21-day safe-harbor provision of rule 11.03(a)(1).
So, the sanctions were reversed because Lind Jensen was not served with the motion for sanctions 21 days in advance of it being filed with the court. The opposing counsel claimed they waited to pursue sanctions "because a Lind Jensen partner told him that evidence supporting the denial of the claim for breach of fiduciary duty was forthcoming." The court of appeals ruling is linked to below.
Gibson v. Coldwell Banker Burnet, 659 N.W.2d 782 (Minn. App. 2003)
This page last modified 2010-11-05