SAN DIEGO (Legal Newsline) - A California law firm must pay $10,000 in sanctions for behavior an appellate judge likened to “the adult equivalent of schoolyard bullying,” including refusing to respond to requests for evidence and sending sneering emails to opposing counsel.
The fact the law firm withdrew as counsel of record before the sanctions order was handed down has no impact on its liability, California’s Fourth Appellate District Court ruled.
“It is not necessary to be counsel of record to be liable for monetary sanctions for discovery misuse,” the court said in a May 2 opinion by Justice William Bedsworth.
The Vanderpool Law Firm represented John Bauche after he was sued by his former employer, Masimo Corp., for allegedly embezzling $1 million, allegations that led to Bauche being indicted. Prosecutors dropped the charges in 2021, and Bauche has told the U.S. Department of Labor that Masimo - which now faces investigations from the SEC and the Department of Justice after a derivative class action alleged misleading statements - made up the allegations in an effort to obtain insurance money that would come from an employee theft provision in its policy.
Vanderpool attorney Douglas B. Vanderpool first objected to discovery in the civil case against Bauche, citing his Fifth Amendment right against self-incrimination while the criminal case was pending. After the criminal case ended in December 2019, however, Vanderpool continued with the objections, refusing to provide basic details including Bauche’s age and address. Bauche also filed and lost an anti-SLAPP motion to dismiss the civil case against him.
Vanderpool withdrew as Bauche’s lawyer in March 2022 leaving Bauche, a non-lawyer, to represent himself. After that, Vanderpool sent “dodging letters and emails,” the appeals court said, before finally saying it was no longer in the case and would refuse to meet.
“Your remedy is elsewhere, and an attorney with your billing rate should know that,” he said in an email to Latham and Watkins attorney Robert Ellison. “We are not here to educate you.”
Masimo sought $17,500 in sanctions against Bauche and Vanderpool, and a retired judge recommended $10,000, calling the Vanderpool lawyers’ conduct “shameful.”
The appeals court upheld the sanctions in an opinion that also decried the decline in civility among lawyers in California. Civility is not just about etiquette or bad manners, the court said, because it also “slows things down” and “costs people money.”
“Evidently Vanderpool’s principal attorney, Douglas Vanderpool, did not get the memo,” the court said, citing his email to opposing counsel Ellison. After being served with papers for the motion to compel, Vanderpool began the email with the subject line “You are joking right?”
“In 30 years of practice this may be the stupidest thing I’ve ever seen,” Vanderpool went on. “Robert is this really why you went to law school? Quit sending us paper. You know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.”
The court concluded with a warning: “Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.”