I have always approached litigation as seeking to maintain a cordial, civil relationship with my adversary, especially if it is (as happens a lot) my goal to settle the case early on. There are times, however, I love when it gets nasty. Especially when I am not involved. In a recent FLSA class case, a federal magistrate judge was angry at both attorneys. The court actually granted a motion for sanctions against the employer but observing that both sets of lawyers persistently ignored the court’s warnings to act like professionals and both had rendered the normal conduct of discovery almost “impossible.” The case is entitled Piccolo v. Top Shelf Productions et al., and was filed in federal court in the Eastern District of New York.
Magistrate Judge Gary R. Brown said that Joseph M. Labuda and Saul D. Zabell were constantly unprofessional and the attorneys were unable “to act with a modicum of courtesy toward each other.” The Judge stated that “both [attorneys] have handled this matter in a needlessly contentious fashion. Such tactics will no longer be tolerated.”
Mr. Piccolo filed suit, claiming he was not paid proper overtime, amongst other violations. He sought to represent a class of all other nonexempt employees. The case began discovery in July 2017 and, as the Judge wryly put it, it went “off the rails.” The judge would not recite the list of “seeming[ly] endless complaints and accusations, and what can only be characterized as a cavalcade of name-calling by counsel.” There were eight time he had to tell them to be civil to each other. But, they did not stop.
For example, the latest tiff involved a deposition and the antics that went on there. The Judge ordered that the deposition be allowed to continue but he did not trust the lawyers enough that they would act civilly. He therefore ordered that it would be held in the courtroom. The Judge told both lawyers that “any improper conduct will result in significant sanctions.” The Judge also did not spare the lawyer who was not sanctioned. He scolded him for suggesting that the court was biased against him. The Judge said that was “transparently manipulative.”
Can’t we just get along?