November 07, 2021

Episode 71 - Lessons from the Front Lines: A Plaintiff Escapes Sanctions for Using Public Records Requests to Gather Information During a Discovery Stay

20 minutes

In this episode - one in a recurring series where we share brand new deposition-related court rulings from around the country - Jim Garrity tells you about a ruling just three days ago, where a judge pondered the question whether a plaintiff's lawyer had violated a discovery stay by using a public-records act request to gather information while the stay was in effect. It's similar to a line of cases where courts have said that gathering witness statements in "deposition-like" settings while a stay is in place may be sanctionable. Cases mentioned in this episode are listed in the show notes below. (Psst! While you're here - can you leave our team a 5-star rating where you get our podcasts? It's a fast, free and hugely-appreciated way to say thanks back!)

CASE NOTES:

Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (court narrowly denies sanctions where lawyer used extra-judicial means to gather information while discovery stay is in effect)

Clerk's Minutes from hearing on Defendant's Motion for Sanctions, Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (clerk's notes reflecting argument and court commentary during hearing on Defendant's Motion for Sanctions)

Martinez v. Carson, 697 So.2d F.3d 1252 (10th Cir. 2012) (affirming sanctions against lawyer who took "deposition-like" statements from witnesses while discovery stay was in place, saying the gathering of those statements at minimum violated the spirit of the stay)

*(Added post-publication of this episode) Langston v. Town of Chester, etc., No. 14CIV9474NSRLMS, 2018 WL 11425556, at *1 (S.D.N.Y. Jan. 18, 2018), adopted sub nom. Langton v. Town of Chester, No. 14-CV-9474 (NSR), 2018 WL 1353293 (S.D.N.Y. Mar. 14, 2018) (court refused pro se plaintiff's request to gather affidavits from key witnesses while protective order is in place forbidding depositions of same witnesses)

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