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NC lawyer, client ordered to pay nearly $35K

SC judge finds abusive discovery tactics

A South Carolina trial judge has slapped a North Carolina lawyer and his client with nearly $35,000 in sanctions for engaging in abusive discovery tactics during a wrongful death case.

Rikard

Rikard

“Issuing an order of sanctions is a somber task for circuit judges,” Richland County Circuit Judge Tanya Gee wrote in a Jan. 27 order denying reconsideration of her sanctions award.

“This court recognizes it bears responsibility for protecting our civil justice system from abuse,” she added, “yet it finds no pleasure in admonishing fellow attorneys.”

Gee determined in her Dec. 29 sanctions order that a senior living and healthcare facility operator, Five Star Quality Care Trust Inc., and its Charlotte-based attorney, Gerald Stein II of Hedrick Gardner, turned the discovery process into a game of Go Fish.

She wrote that “defense counsel makes opposing counsel ‘go fish’ until they happen to stumble upon crucial witnesses and critical documents.” She specifically found that Stein and Five Star failed to produce appropriate witnesses, ran afoul of the rules of alternative dispute resolution and withheld a key document.

Gee ordered Stein and Five Star to pay $34,955 to the plaintiff’s attorneys at Rikard & Protopapas in Columbia. They represent Patricia Greenburg in a wrongful death suit against Five Star, which operates the The Haven in the Summit senior facility in Columbia, where Greenburg’s mother, Constance Chandler, fell several times before her death in 2010.

“The Rules of Civil Procedure are really important to follow,” said Robert Rikard. “Discovery has become such a quagmire of problems over the last few years where parties try to engage in behavior that hides the ball in an attempt to get around the rules of discovery.”

He added, “This order sends a message that the rules must be followed and the playing field must be leveled for all parties.”

Stein could not be reached for comment. But in his motion asking Gee to reconsider, he wrote that the sanctions award was “exceedingly harsh” and urged her to take a “more reasoned and measured approach to resolving this issue.”

Another attorney at his firm, David Neal Allen, also was involved in the case. He attended a mediation hearing, but, unlike Stein, he is not licensed to practice law in South Carolina and was not Five Star’s counsel of record. He also did not respond to an interview request.

During the mediation hearing, Allen refused to answer a question about whether a Five Star representative or its insurer with full settlement authority was present, according to Gee’s sanctions order. Stein and Allen had brought one of Five Star’s mid-level managers to the mediation session.

Three months later, Rikard & Protopapas served Five Star with a deposition notice requiring the company to produce witnesses who had knowledge of the allegations in the complaint and the facility’s policies and procedures regarding hiring, training and fall prevention, among other things.

Five Star objected, contending that it was unable to produce anyone who was familiar with the facility’s operations before November 2009, when Five Star acquired the facility. The suit alleges that Chandler fell at least 10 times between March 2009 and January 2010.

Five Star and Stein eventually produced a regional director of nursing, who revealed at the deposition that she was unfamiliar with the topics at the heart of the lawsuit. But she identified another employee, Gail Pochardt, who could answer Rikard’s questions.

At the time, Stein “reacted defensively and blamed” Rikard for failing to give him notice that the deposition would include questions about matters that occurred before 2011, according to Gee’s order.

“You’re joking, right?” Rikard asked, according to an excerpt from the deposition transcript.

“No.” Stein replies. “I’m not joking.”

Later, Rikard ends the deposition, saying that “we’re going to take this up with the judge.”

“Let’s do it,” Stein says.

“Because this is just unbelievably inappropriate,” Rikard adds.

“What it is is an unbelievably poorly written 30(b)(6) notice,” Stein retorts.

But at the sanctions hearing, Stein performed an apparent about-face, asserting that he thought the nursing director was prepared to answer Rikard’s questions before they showed up for her deposition, according to Gee.

“It strains credulity to believe that the Five Star defendants were surprised to learn that the plaintiff sought information pertaining to the timeframe identified in the complaint as the time during which Ms. Chandler had numerous falls and died,” she wrote in her order.

She ordered Five Star and Stein to pay Rikard’s firm $9,595 for costs and attorneys’ fees associated with the “useless” deposition.

She also ordered them to pay the firm another $15,285 in costs and fees for attending the mediation hearing without bringing a representative of Five Star or its insurer who had full authority to settle the claim.

“Without these attendees, the Five Star defendants undermined the mediation process and prejudiced the plaintiff, who was deprived of a meaningful opportunity to settle this matter,” Gee wrote.

She also scolded Five Star and Stein for failing to hand over during discovery a mock survey that included information that was responsive to at least six of the production requests from Rikard’s firm.

The survey came to light during Pochardt’s deposition. She testified that the survey was prepared the same month that Chandler died and described the document as a “good audit tool of how the community is doing.” The survey included details about the facility’s policies and procedures, staff training, incident reports and fall prevention programs.

Stein argued at the sanctions hearing that he first learned about the survey at the deposition. But before the hearing, he had argued in a memo opposing the motion for sanctions that the survey was not responsive to the discovery requests.

“While honest mistakes happen during document production,” Gee wrote, “defense counsel’s written assertion that he had no obligation to produce the mock survey suggests counsel purposely withheld the document, not – as defense counsel later argued – that the document had never been revealed until the deposition.”

Gee did not impose monetary sanctions for the mock survey transgression. But she ordered Five Star and Stein to pay an additional $10,075 in sanctions for the time that Rikard and his co-counsel, Charles Usry, spent on the sanctions motion.

The sanctions have been paid, according to Rikard, and the lawsuit is headed to trial.

“It’s rare in South Carolina to have this kind of sanctions order from a state court. But it is necessary and much needed,” he said. “I hope this is an order that will signal what will happen in the future when people play games with the discovery rules.”

Follow Phillip Bantz on Twitter @NCLWBantz

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