by David Horrigan on December 03, 2015
"What Jefferson was saying was, ‘Hey! You know, we left this England place ‘cause it was bogus so if we don’t get some cool rules ourselves—pronto—we’ll just be bogus, too.'"
--Sean Penn as Jeff Spicoli in Fast Times at Ridgemont High
The quote above, from one of popular culture’s more comical marijuana aficionados, notes Thomas Jefferson’s call for new rules for the American colonies. The future president wasn’t the only one who feared bad rules ran the risk of making the nation bogus.
Over the past few years, the e-discovery law community has debated amendments to the Federal Rules of Civil Procedure to fix allegedly bogus e-discovery provisions, including Rule 37(e)’s provisions on sanctions.
As noted at the Relativity Fest 2015 Judicial Panel, Rule 37(e) may have changed, but judges have other tools in their judicial toolboxes to address bad behavior in e-discovery.
In this post, we examine a case of a lawyer trying to smuggle marijuana in a tennis shoe, a newspaper reporting about it, more than a decade of discovery delay in the lawyer’s subsequent defamation suit against the newspaper, and how Fed. R. Civ. P. 41(b) can still get your case kicked out of court.
On April 3, 2003, attorney Lee Rohn attempted to board a commercial flight at the Henry E. Rohlsen Airport on the island of St. Croix in the U.S. Virgin Islands, but her high-flying plans were grounded when a Transportation Safety Administration screener discovered marijuana in a tennis shoe in a vacuum-sealed bag in Rohn’s luggage.
Rohn allegedly said the cannabinoid contraband was for her Rastafarian boyfriend in Puerto Rico because his father was dying, but—whether or not the whole thing was an overzealously bogus bust of a marijuana mission of mercy—the incident spawned more than a decade of litigation, including new case law on involuntary dismissals for dilatory discovery.
In addition to criminal proceedings before the U.S. District Court for the District of the Virgin Islands and the U.S. Court of Appeals for the Third Circuit in Virgin Islands v. Rohn, the incident has been the basis for a civil action that has lasted more than a decade, resulting in the recent e-discovery decision in Rohn v. Daily News Publ’g Co., Inc., No. SX-04-CV-158 (V.I. Sup. Ct. Oct. 21, 2015).
About a year after the airport incident, the Virgin Islands Daily News, a local newspaper published by Daily News Publishing Company Inc., ran a series of three articles about Rohn’s alleged weed-in-the-sneaker caper, and Rohn sued for defamation.
Daily News Publishing moved to dismiss, arguing Rohn failed to cooperate in discovery and that she provided no discovery of her own. Rohn countered that the publisher had yet to respond to her discovery requests from 2005 and that dismissal was too severe a sanction.
The discovery delays became long-term when Rohn refused to provide certain discovery, invoking her Fifth Amendment protection from self-incrimination. Daily News Publishing moved for a discovery stay until the conclusion of the criminal proceedings, and the Superior Court of the Virgin Islands granted the stay.
The fun began again five years later when Rohn moved to lift the stay. Once again, Rohn was apparently somewhat less than robust in her participation in discovery, and Daily News Publishing moved to dismiss for failure to prosecute, pursuant to Fed. R. Civ. P. 41(b).
In analyzing whether the case should be dismissed over Rohn’s alleged discovery failures, the court relied on the six-pronged test articulated by the Virgin Islands Supreme Court in Halliday v. Footlocker Specialty Inc., 53 V.I. 505 (V.I. 2010). The six factors are:
- the extent of the plaintiff’s personal responsibility;
- the prejudice to the other parties in the litigation;
- whether the plaintiff has demonstrated a history of dilatoriness;
- whether the plaintiff or attorney’s conduct was willful or in bad faith;
- the effectiveness of sanctions other than dismissal; and
- the meritoriousness of the plaintiff’s claims.
In a split analysis, the court said the first factor (plaintiff’s personal responsibility) favored dismissal because—as an attorney—Rohn is held to a higher standard than a typical pro se litigant. Also, Rohn isn’t just any lawyer. She serves on the Board of Governors of the American Association for Justice, and even the newspaper she’s suing for defamation referred to her as a “prominent” attorney.
In addition, the court scored the third factor (plaintiff’s history of dilatoriness) for the publisher, and the publisher prevailed on the fourth factor (willfulness or bad faith), noting Rohn had neither cooperated in discovery nor scheduled a Rule 26(f) conference. (Practitioner’s Note: Trying to dodge the meet and confer is a really bad idea.)
On the other side of the judicial analysis scorecard, the second factor (prejudice to other parties) went to Rohn. Although the court noted the publisher was prejudiced by having to go through the legal proceedings on the motion to dismiss, it held it wasn’t enough to warrant dismissal. In addition, factors five (effectiveness of lesser sanctions) and six (merit of the plaintiff’s claim) went for Rohn.
The court rejected the publisher’s argument that Rohn’s guilty plea on the marijuana charge gutted her claim of defamation, noting that Rohn was claiming libel on facts beyond the article itself.
With a 3-3 tie on the six Halliday factors, Rohn carried the day and avoided a Rule 41(b) dismissal, but the case provides a cautionary tale for e-discovery practitioners and providers.
Why Rohn Matters
As we noted with D.O.H. v. Lake Cent. Sch. Corp., no matter how courts interpret the new Rule 37(e), they will still be able to sanction e-discovery evildoers, and Rohn illustrates one way they’ll be able to do it.
We concede that Rohn provides a somewhat unusual procedural history. After all, how many plaintiffs file suit, fail to conduct discovery, and then litigate to prevent the dismissal of a civil action they’ve left dormant for the better part of a decade?
Nevertheless, consider what happened in Rohn and remember that Rule 41(b) may get litigants who blow off discovery.
Another takeaway from Rohn: If you’re flying from an airport the U.S. Department of Justice has designated as part of a “High Intensity Drug Trafficking Area,” it’s probably a good idea to refrain from traveling with marijuana in your tennis shoe. As Jeff Spicoili could tell you, you’re likely to have a really bogus experience.
David Horrigan is kCura’s e-discovery counsel and legal content director. An attorney, law school guest lecturer, e-discovery industry analyst, and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research.