MSL when the ABA attempted to take Mr. Chaplin's deposition. Where Mr. Hart contended he thought the subpoenas, motions, responses, replies, and orders were all in pursuit of an answer to a theoretical question about the attorney-client privilege, Mr. Capra emphasized mechanics. His justification for MSL's refusal to comply with my orders was based on the ABA's failure to be specific enough in its motions. "We operated," so he said, "on the basis that the American Bar Association had never moved for an order directing the production of documents by a certain date. They had not moved for an order compelling answers to specific questions that had been asked at the deposition and to which objections had been interposed." (Sanctions Hearing, 10/25/95, at 19:23-20:4).
Although related to Mr. Hart's contention that ABA had only requested a ruling on the abstract question of privilege, Mr. Capra's argument shifted the emphasis from what ABA sought to how things were sought. In effect, Mr. Capra raised a new objection
never made in any of Mr. Hart's pleadings and apparently saved by Messrs. Hart and Capra for the proverbial rainy day. As previously noted, a lawyer does not act in good faith when he tries to justify ignoring discovery requests and court orders with an objection which, to that point, he has kept to himself. Discovery is not poker where the cards are turned up one at a time.
Messrs. Capra's and Hart's assertions that they "operated" on the basis that ABA had never requested that I compel the production of specific documents might appear in a better light had they complied with Federal Rule of Civil Procedure 45(d)(2). This rule requires a party who withholds subpoenaed information on the grounds of privilege to make the claim "expressly" and to "describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection."
When I asked if MSL had complied with the rule, Mr. Capra admitted that no privilege log had ever been provided. (Sanctions Hearing, 10/25/95, at 9). However, he maintained that MSL was not required to do so because the ABA knew it was MSL's position that Mr. Chaplin was "providing legal services, was acting as a lawyer for MSL." (Sanctions Hearing, 10/25/95, at 10). Mr. Capra is wrong. A general objection is insufficient. The purpose of the rule is to provide a party whose discovery is constrained by a claim of privilege with information sufficient to evaluate the claim and to resist it. The party claiming the privilege cannot decide the limits of his entitlement. A person who fails to provide adequate information about the privilege to the party seeking the information may be held in contempt or be subjected to sanctions. Fed.R.Civ.P. 45 advisory committee's note (1991); 45 U.S.C.A. §§ 404-05. Moreover, failure to assert a privilege properly may amount to a waiver of that privilege. See Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136 F.R.D. 179, 183-84 (E.D.Cal. 1991). It follows that a party who alleges privilege as a reason for not complying with a subpoena has the burden of proof to assert specific facts relating to specific documents and cannot rely on conclusory statements.
Mr. Capra contended he and Mr. Hart believed in good faith that my orders granting ABA's motion to compel compliance with its subpoenas did not require them to produce specific documents because neither ABA's motion nor my orders identified specific documents. Without a privilege log, however, obviously there was no way ABA could specifically identify any document. Messrs. Hart and Capra have put the saddle on the wrong horse. Their failure to provide a privilege log made any expectation of specificity from ABA unreasonable, factually impossible, and legally frivolous. Thus, although I do not reach the question of whether MSL's failure to provide a privilege log amounted to a total waiver of the attorney-client privilege, I do find that in failing to provide the log, MSL waived its right later to question the specificity of ABA's document requests, ABA's motions to compel, and my orders granting those motions. A lawyer cannot rely on his own disregard for the rules of civil procedure to justify his further misconduct.
5. Sanctions Are Imposed on Kenneth N. Hart Personally
Federal Rule of Civil Procedure 37(b)(2) provides that "if a party . . . fails to obey an order to . . . permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just . . .." Rule 37 sanctions can include both attorney's fees and fines levied against a party, an attorney, or both. Fed.R.Civ.P. 37(a)(4) (mandatory attorney's fees when motion to compel granted and opposition not substantially justified); Pereira v. Narragansett Fishing Corp., 135 F.R.D. 24, 26-27 (D. Mass. 1991) ("may make such orders in regard to the failure as are just" empowers courts to levy fines). Sanctions allowed under Rule 37 are intended to: 1) compensate the court and other parties for the added expenses caused by discovery abuses; 2) compel discovery; 3) deter others from engaging in similar conduct, and 4) penalize the offending attorney. Wouters v. Martin County, 9 F.3d 924, 933 (11th Cir. 1993), cert. denied, 130 L. Ed. 2d 21, 115 S. Ct. 65 (1994).
Finally, courts possess an independent, inherent power to discipline attorneys who appear before it. Chambers v. Nasco, Inc., 501 U.S. 32, 43, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991). Courts can exercise this inherent power to impose sanctions where an attorney behaves vexatiously. As part of its inherent power, a court has wide latitude in fashioning an appropriate remedy. Id. at 45-46.
Mr. Hart closed his comments to me at the sanctions hearing in the same vein in which he had begun:
And I think I can say without any reservation that I made those decisions and judgments. And I take full responsibility for them, and I'm accountable for them. And what MSL did, your Honor, and what Dean Velvel did and Connie Rudnick did and Peter Malaguti did was pursuant to my advice and counsel as their lead attorney in this matter.
(Sanctions Hearing, 30:13-18)
I am not imposing sanctions on Mr. Hart for initially opposing ABA's motion "to Compel Compliance with Subpoena"
or for his subsequent motion for reconsideration of my order granting ABA's motion "to Compel Compliance with Subpoena," but rather for his subsequent, intentional, inexcusable conduct and the conduct of others for whom he has claimed responsibility.
Because Mr. Hart is solely responsible, he and he alone should pay the sanctions I am imposing. He is to pay them personally. See Landon v. Hunt, 977 F.2d 829, 832 (3d Cir. 1992) (sanctions can properly be imposed on attorney personally); Carter v. Albert Einstein Med. Ctr., 804 F.2d 805 (3d Cir. 1986). That means he is not to accept any payment, reimbursement, or contribution from MSL, its faculty, administrators, trustees, supporters, or donors. The sanctions are to come from Mr. Hart's own money. He is not to accept any aid, assistance, or help in making payment. Mr. Hart is to be the source of the funds: not the client, not its employees, owners, or students; not his own law firm, his partners, his associates, or any insurance carrier.
ABA's attorney Barbara Mather has filed a sworn affidavit affirming that she and her co-counsel incurred expenses in the amount of $ 4,232 in responding to MSL's motion for reconsideration of my order of September 20, 1995.
MSL does not challenge the reasonableness of these expenses. (Sanctions Hearing, at 33:8-9). Based on the facts set forth in this opinion, Fed.R. Civ. P. 37, 28 U.S.C. § 1927, and the inherent power of this court, I find that Mr. Hart should bear the costs of ABA's opposition to MSL's motion for reconsideration of my order of September 20, 1995. Moreover, Mr. Hart should personally be fined an additional $ 4,232 because of the unreasonable contentions in his motion papers and at the hearing held on October 25, 1995.
An appropriate order follows.
AND NOW, this day of February, 1996, Kenneth N. Hart, Esquire, is hereby ordered:
1. to pay $ 3,260 personally to the law firm of Sidley & Austin;
2. to pay $ 972 personally to the law firm of Pepper, Hamilton & Scheetz; and,
3. to pay $ 4,232 personally to the Clerk of the United States District Court for the Eastern District of Pennsylvania.
It is further ordered that in view of the fact that Mr. Chaplin, Mr. Malaguti, Ms. Rudnick, Mr. Velvel, and Mr. Capra were all acting at Mr. Hart's behest, none of them will be required to pay any sanction.
BY THE COURT: