The defendants in Freshwater v. Mount Vernon Board of Education, et al. have requested that R. Kelly Hamilton, John Freshwater’s attorney, be subject to sanctions for failure to comply with discovery demands. What’s interesting about the request (pdf) is that it specifically singles out attorney Hamilton for the sanctions, and not Freshwater.
6. GRANTS Plaintiffs’ request for attorneys’ fees and costs. The Court ORDERS Freshwater and Attorney R. Kelly Hamilton to pay the reasonable attorneys’ fees and costs that Plaintiffs incurred as a result of Freshwater’s and Attorney Hamilton’s failure to comply with this Court’s Written Order Compelling Production and this Court’s Verbal Order Compelling Production and ORDERS Freshwater and Attorney R. Kelly Hamilton to pay the reasonable attorneys’ fees and costs that Plaintiffs incurred as a result of filing their Motion to Compel. (italics added)
The italicized phrase plainly says that both Freshwater and Hamilton are responsible for the costs. However, what was offered as supposedly satisfying that order was an unrecorded lien on a parcel of land nominally belonging to Freshwater. Hamilton put nothing into the payment pot.
In the new request (pdf) filed in Freshwater v. MVBOE the defendants specifically single out Hamilton for sanctions. They say
Further, this Court should order Attorney Hamilton to pay the expenses incurred by Defendants. “Rule 37 permits a court to order the attorney who advised the conduct necessitating a motion to compel to pay the expenses thereby incurred… when it is clear that discovery was unjustifiably opposed principally at his instigation.” Id. at *19-20 citing Humphreys Extermination Co. v. Poulter, 62 F.R.D. 392, 395 (D. Md. 1974). For the foregoing reasons, it is clear that Attorney Hamilton controlled the disposition of his clients’ discovery responses. Attorney Hamilton chose not to call Defendants’ counsel to notify them that responses were in the mail and chose not to file for an extension of time. It was Attorney Hamilton who did not work with Defendants’ counsel to provide adequate discovery in a timely fashion.
I’ve heard some talk among attorneys not associated with the matter to the effect that Hamilton should be subject to some sort of discipline for his behavior in the several cases involving Freshwater, and this request for sanctions specifically directed at him may foreshadow even more serious measures to come.