989 F.

2d 1154
25 Fed.R.Serv.3d 815

Gary DEVANEY, d/b/a DeVaney Logging Company, PlaintiffAppellee,

v.
CONTINENTAL AMERICAN INSURANCE COMPANY;
Daniel M. Speer,
d/b/a Speer Holt Insurance, Defendants,
Tom E. Ellis, Appellant.
No. 91-7427.

Eleventh Circuit
May 5, 1993.
Tom E. Ellis, Kracke, Thompson & Ellis, Birmingham, AL, for appellant.
Mary A. Westbrook, Ralph M. Young, Gonce, Young & Westbrook,
Florence, AL, Samuel H. Franklin, Lightfoot, Franklin, White & Lucas,
Birmingham, AL, for defendants.
Frank H. Hawthorne, Jr., G. William Gill, McPhillips, Debardelaben &
Hawthorne, Montgomery, AL, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of
Alabama.
Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior
Circuit Judge.
HILL, Senior Circuit Judge:

Petitioner Tom Ellis served as defense counsel for Continental American

Insurance Company ("Continental") in a suit brought by Gary Devaney for
nonpayment of a claim for damaged logging equipment. A third party
defendant, Daniel Speer, d/b/a Speer-Holt Insurance Agency, ("Speer")
participated in discovery but was dismissed on summary judgment prior to trial.

The relationship between Continental and Devaney was highly acrimonious

during the nineteen month pre-trial period, and each of the three parties in the
suit filed motions for sanctions. The magistrate judge deferred ruling on these
motions pending the completion of trial.
2

Subsequent to a jury trial which resulted in a judgment in Devaney's favor, the

district court referred the motions for sanctions to the magistrate judge, who
conducted a hearing and eventually recommended sanctions against Ellis under
Fed.R.Civ.P. 37 and against Devaney's attorneys under Fed.R.Civ.P. 11 and 37.
After considering the attorneys' objections to the magistrate's report, the district
judge adopted the magistrate's recommendation in full and ordered, inter alia,
that Ellis pay costs of $1,954.38 to Gary DeVaney.1

On appeal, Ellis raises three issues. He argues: 1) that the manner in which the
court imposed sanctions denied him due process of law under the Fifth
Amendment to the Constitution; 2) that the magistrate judge applied an
erroneous legal standard under Fed.R.Civ.P. 37; and 3) that the court erred in
adopting the magistrate's finding that no "substantial justification" excused
Ellis' behavior during the relevant discovery period. For the reasons that follow,
we AFFIRM the order of the district court.

I. Procedural History
4

Gary Devaney filed the initial complaint in this case in the Circuit Court of
Franklin County, Alabama, in June, 1989, and the defendants removed it to
federal court shortly thereafter. The complaint contained bad faith and breach of
contract claims against Continental and Speer for failure to pay under a casualty
policy for the fire loss of a Hydro-Ax 611 Filler Buster used in Devaney's
logging business.

Upon Continental's 2 motion, the district court authorized an extension of time,

to August 23, 1989, for Continental to reply to discovery requests which
Devaney had served with the complaint. On August 7, Devaney filed a notice
of deposition under Fed.R.Civ.P. 30(b)(6) and a request for production of
documents under 30(b)(5). Continental objected to that portion of the notice
which appeared to demand that it produce the president of Continental, John V.
Loudermilk, as its 30(b)(6) corporate representative.3 3] Devaney amended the
notice of deposition three times during August and, in its final form, the notice
included the original 30(b)(5) document requests and scheduled the deposition
of John V. Loudermilk for September 6, 1989, in Indianapolis, Indiana.

On August 31, Continental filed an objection to the notice as amended,

On August 31, Continental filed an objection to the notice as amended,

claiming 1) that some of the documents sought were either undiscoverable
under state law or protected by the attorney/client privilege, and 2) that the
30(b)(5) request was unduly burdensome. On September 1, Ellis telephoned
Devaney's counsel, Frank Hawthorne, to discuss whether the parties should
proceed with the deposition scheduled for September 6. The parties dispute the
substance of the conversation. Ellis contends that Hawthorne insisted on
proceeding with the deposition notwithstanding Continental's newly filed
objections, and Hawthorne contends that Ellis assured him Continental would
provide substantially all of the requested documents at the deposition.

On September 5, after a holiday weekend, the magistrate judge and Mary Anne
Westbrook, counsel for defendant Speer, received copies of Continental's
August 31 objections. Westbrook telephoned Ellis and Hawthorne in
Indianapolis, where each assured her individually that the scheduled deposition
would proceed. At Loudermilk's deposition on September 6, Ellis attempted to
characterize some of Loudermilk's responses as the responses of a 30(b)(6)
representative but refused to concede that Loudermilk would serve as the
corporate representative at trial and refused to identify a corporate
representative. Ellis also refused to provide the documents described in
Devaney's 30(b)(5) request. Westbrook objected to the conduct of both
attorneys and informed them that she would seek sanctions against Continental
for the cost of any future trip to Indiana made necessary by Ellis' failure to
provide documents and a corporate representative. She filed a motion to that
effect on October 24 (Motion I). R1-43. Devaney filed a similar motion for
sanctions on October 26 (Motion II). R1-44.

On October 18, Devaney filed a motion to compel answers to the

interrogatories and document requests he had submitted to Continental in
September. On October 26, Magistrate Judge Greene held a hearing on this
motion and on the earlier motions for sanctions and orally instructed the parties
to file supplemental briefs addressing Continental's objections to production of
the requested material. On November 2, Judge Greene entered an order which
reiterated his caution at the hearing that Continental should prepare the relevant
files for immediate production in case he disallowed its objection. On
December 7, Judge Greene granted substantially all of Devaney's October 18
motion. At Devaney's request, the court deferred consideration of his motion
for sanctions until Continental complied with the other requirements of the
order and the court likewise deferred consideration of Speer's motion for
sanctions.

On January 12, 1990, Devaney filed a second motion for sanctions and renewed
the October 18 motion for sanctions, noting that Continental had failed to

comply with the December 7 order within the twenty day period allotted
(Motion III). R1-55. On January 16, Speer filed a similar motion for sanctions
and renewed his October 24 motion (Motion IV). R1-56. Judge Greene
scheduled a hearing for January 26 and, on January 23, Continental filed the
responses required by the December 7 order. At the January 26 hearing, Ellis
asserted that Continental had had difficulty obtaining the requested documents.
Ellis had not, however, requested a modification of the December 7 order or
applied for an extension of time to reply. Judge Greene determined that
Continental had by then complied with substantially all of the December 7
order and again deferred the question of sanctions.
10

On May 16, 1990, Devaney filed a motion to compel more complete answers to
his fifth set of interrogatories. After a hearing, the magistrate judge entered an
order on May 25 directing Continental to answer five of the disputed
interrogatories. He determined that four interrogatories had become moot
because of a concession made by Continental at the hearing, and he denied
Devaney's motion as to four additional interrogatories. On August 7, Ellis filed
a motion to compel answers to interrogatories which Judge Greene granted on
August 14 in an order that included a warning to counsel that the district court
would likely hold a post-trial hearing to explore the propriety of Rule 37 and
Rule 11 sanctions against them. R2-112.

11

On September 21, Ellis filed a motion to compel production of the transcript of

a telephone conversation between a plaintiff's witness, Dwight May, and
plaintiff's counsel Hawthorne. During that conversation, May implied that Ellis
had encouraged him to misstate a fact in his affidavit. Depo. of Dwight May 7387. On September 27, Devaney filed a motion to compel answers to his seventh
consolidated discovery request and moved for sanctions based on Continental's
failure to comply with the court's order of May 25. (Motion V). R2-144. In an
order entered on November 27, Judge Greene granted Continental's motion to
produce May's statement, granted Devaney's motion to compel, and again
deferred the issue of sanctions. District Judge Acker subsequently vacated this
order and reserved ruling on the motions pending the scheduled deposition of
Dwight May. At a pre-trial conference on December 28, Judge Acker informed
Ellis that the transcript of May's conversation with Hawthorne would be
admitted at trial and that he would disqualify Ellis from testifying as a witness
in opposition to the substance of that conversation unless Ellis withdrew as trial
counsel. Ellis withdrew in January, 1991, but did not testify at trial. The court
took no further action regarding the May-Hawthorne telephone conversation.

12

In the meantime, the district court had granted a summary judgment motion
dismissing defendant Speer. On October 12, 1990, Speer filed a motion for

Rule 11 sanctions against DeVaney on the basis that the claims against Speer
were frivolous. (Motion VI). R3-154.
13

Following a jury trial of Devaney's remaining claims, and concurrent with the
entry of judgment, the district court ordered that Speer's October 12 motion for
sanctions and "the sua sponte questions of sanctions to be imposed on Tom C.
[sic] Ellis" would be considered upon submission of affidavits and briefs. R3196. On the following day, District Judge Acker requested that Magistrate
Judge Greene prepare findings as to "what, if any, sanctions should be imposed
against any lawyer or party in this cause pursuant to Rule 11 and/or Rule 37
F.R.Civ.P." R3-198. On January 31, Ellis filed a motion for clarification of the
acts or occurrences which might form the basis of sanctions. R3-199. On
February 5, Judge Acker entered an order explaining that he had referred Ellis'
motion for clarification to the magistrate and that his January 23 order was not
intended to "exonerate defendant Continental American Insurance Company,
which, in the court's opinion, may also be subject to sanctions pursuant to Rule
37, depending on the findings by the magistrate judge...." R3-202. Also on
February 5, Magistrate Judge Greene entered an order explaining that he would
consider submissions in support of or in opposition to penalties under the six
motions for sanctions described above as well as "any other consideration of
sanctions as set out in Judge Acker's referral order." R2-201.

14

After considering affidavits submitted by the parties, Magistrate Judge Greene

scheduled a hearing. The scheduling order, entered March 5, listed specific
topics for discussion, including "the apportionment of sanctions to be imposed
on Continental American Insurance Company, Inc. and/or its attorney for those
portions of the discovery requests to [sic] which a motion to compel was
ultimately entered...." R4-210. Ellis attended the March 18 hearing along with
Continental's new attorney, Speer's attorney and Devaney's attorneys. At the
hearing, the magistrate discussed each of the motions listed in the February 5
order and conducted a thorough review of the activities relevant to each of
those motions. R13.

15

On April 10, the magistrate entered a recommendation that the court impose
sanctions upon Ellis and upon Devaney's counsel. The attorneys filed
objections. Judge Acker considered the objections and then adopted the
magistrate's recommendation in full. Ellis filed this appeal.4

II. Analysis
16

We review de novo Ellis' claims that the court's imposition of sanctions denied
him constitutionally effective notice and that the court applied an erroneous

legal standard under Rule 37. We review for clear error the finding of the
magistrate, adopted by the district court, that the discovery conduct which was
the object of sanctions was without substantial justification. National Hockey
League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49
L.Ed.2d 747 (1976) (per curiam).
17

The trial court imposed sanctions upon the petitioner under subsections (a)(4)
and (b)(2) of Federal Rule of Civil Procedure 37. Rule 37(a)(4) authorizes a
trial court to award expenses, including reasonable attorneys' fees, to the
prevailing party when a motion is made for an order compelling discovery.5
The rule was toughened in 1970 to mandate that expenses be awarded unless
the conduct of the losing party or person is found to have been substantially
justified. Fed.R.Civ.P. 37 Advisory Committee Notes (West 1991 Revised).
Rule 37(b)(2) authorizes the court to impose sanctions upon a party or an
attorney for failure to obey a court order to provide or permit discovery. 6
A. Due Process

18

An award of attorney's fees under Rule 37 implicates interests protected by the

Due Process Clause of the Fifth Amendment. Roadway Express, Inc. v. Piper,
447 U.S. 752, 767, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980) (Like other
sanctions, attorney's fees should not be assessed lightly or without fair notice
and an opportunity for a hearing on the record); Carlucci v. Piper Aircraft
Corp., 775 F.2d 1440 (11th Cir.1985). Assessment of costs and attorneys fees
is, however, one of the lesser sanctions contemplated by the Federal Rules, see
Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.1988) (Rule 37), Donaldson v.
Clark, 819 F.2d 1551, 1557-1561 (11th Cir.1987) (Rule 11), and it presents a
lesser due process concern than, for example, outright dismissal of an action.
Roadway Express, 447 U.S. at 767 n. 14, 100 S.Ct. at 2464 n. 14; and see
Donaldson, 819 F.2d at 1561 (The more serious the possible sanction both in
absolute size and in relation to actual expenditures, the more process that will
be due).

19

Ellis maintains that he was denied due process because he was never placed on
notice of the actions for which the court was considering sanctions. He bases
this alleged failure of notice on two facts: 1) the naming of Continental, and not
Ellis, in Devaney's and Speer's motions for sanctions; and 2) Judge Acker's
mention of a "sua sponte question" of sanctions in his January 23 order. We
address the due process implications of each of these facts in turn.

20

The five relevant motions for sanctions (Motions I through V) did in fact name

Continental as the target of sanctions. We are satisfied, however, that the

motions were sufficient to place Ellis on notice of potential personal liability
for the activities referred to therein. Rule 37 subsections (a) and (b) permit the
court to impose sanctions upon a party or its attorney or both and establish no
preference between these options. Because the apportionment of fault between
an attorney and client is the court's responsibility, a party listing only its
opponent in a motion for sanctions does not absolve the opponent's attorney of
potential liability. Instead, the movant merely provides the court with the
double option of holding responsible either the opponent or the attorney either
under the motion or sua sponte. Accordingly, a motion for sanctions under Rule
37, even one which names only a party, places both that party and its attorney
on notice that the court may assess sanctions against either or both unless they
provide the court with a substantial justification for their conduct.
21

While the motions themselves were thus sufficient to satisfy the Due Process
Clause, any uncertainty Ellis may have had about the possibility of personal
liability should have been set to rest by the court's subsequent handling of the
sanctions process. Not only did Magistrate Judge Greene list the motions under
which sanctions were being considered, he also specified questions to be
discussed at the March 18 hearing and included the question of apportioning
fault between Continental and Ellis. Ellis was or should have been on notice
that he could be held accountable under Motions I-V. Accordingly, we reject
his suggestion that the imposition of sanctions denied him constitutionally
effective notice.7

22

Petitioner's next contention is that he was denied due process by Judge Acker's
inclusion of a "sua sponte question" of sanctions in the order of January 23.
Given the pervasiveness of the parties' intransigence in this case, Judge Acker's
order may well have left Ellis in some doubt about the court's particular
concerns. As early as August 14, 1990, however, Magistrate Judge Greene
warned:

23[T]he failure of counsel for the plaintiff and the defendant, Continental American
...
Insurance Company, to resolve numerous discovery problems have [sic] contributed
substantially and unnecessarily to the costs of this litigation to the apparent benefit
of neither party. Counsel for the plaintiff and counsel for the defendant, Continental
American Insurance Company, should be aware that the district court will likely
conduct a hearing at the conclusion of this litigation to determine whether Rule 11 or
Rule 37 sanctions are required as a result of the conduct of any attorney in this
action. R 2-112 at 1-2.
24

Ellis should reasonably have taken this warning to mean that he might be

subject to sanctions from one of two sources: the motions for sanctions
previously filed by Devaney and Speer or the sanctions power of the court
under the Federal Rules. As discussed above, no error flows from the sanctions
imposed under the Rule 37 motions filed by the parties. With regard to
sanctions by the court's own motion, it appears from the record that Judge
Acker may have considered Rule 11 sanctions against Ellis related to the nature
of his contacts with plaintiff's witness Dwight May. Assuming, arguendo, that
Judge Acker did consider Rule 11 sanctions against Ellis, he imposed none. In
addition, Magistrate Judge Greene made it clear that such sanctions were
outside the scope of his investigation of sanctions and the March 18 hearing.
R4-210 at 4 n. 3. We reject Petitioner's suggestion that the court's consideration
of Rule 11 sanctions, if it occurred, implicates the Due Process Clause.
25

Far from depriving Ellis of due process, the court's careful handling of the issue
of sanctions provided Ellis with substantial process in an area, monetary
sanctions, where due process protection is narrowly defined. As the Supreme
Court has instructed, "The adequacy of notice and hearing respecting
proceedings that may affect a party's rights turns, to a considerable extent, on
the knowledge which the circumstances show such party may be taken to have
of the consequences of his own conduct." Link v. Wabash R. Co., 370 U.S.
626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962) (upholding dismissal of
an action without notice or a hearing for attorney's failure to prosecute); accord
Carlucci, 775 F.2d at 1452. The record contains ample evidence that Ellis was
or should have been aware that his conduct in this litigation would likely result
in sanctions against him. The process provided to him was more than adequate
and the court's imposition of sanctions did not violate the Fifth Amendment.
B. Rule 37 standards

26

Petitioner next argues that a trial court may impose sanctions upon an attorney
under Rule 37 only after making a specific finding that the attorney instigated
discovery misconduct. In support of this position, Ellis points to language in
Rule 37 which instructs the court that it may impose sanctions upon a "party or
attorney advising such conduct." (emphasis added) Fed.R.Civ.P. 37(a)(4). He
suggests that the burden of establishing an attorney's responsibility for
discovery misconduct should rest either on the attorney's client or on the party
moving for sanctions.

27

Neither the language nor the purpose of Rule 37 support the procedural
requirement suggested by the petitioner. The Rules Committee drafted the 1970
amendments to encourage the use of sanctions, noting: "It appears that the
courts do not utilize the most important available sanction [Rule 37(a) ] to deter

abusive resort to the judiciary," and later, "The [1970] amendment does not
significantly narrow the discretion of the court, but rather presses the court to
address itself to abusive practices." Fed.R.Civ.P. 37 Advisory Committee
Notes. Requiring the court to conduct a mini-trial in order to prove the
involvement of an attorney in particular discovery conduct could only
discourage the court from ordering sanctions.8 A mini-trial in this case, for
example, would have set as adversaries an attorney and a client who had
already demonstrated substantial skill at obfuscation and delay.
28

Accepting Ellis' position would require us to incorporate into Rule 37 a

presumption that courts considering Rule 37 sanctions must impose those
sanctions on the client unless the client proves that his or her attorney
instigated the relevant misconduct.9 The phrase "attorney advising such
conduct" does not, however, exclude either an attorney's willful blindness or his
acquiescence to the misfeasance of his client; to the contrary, the phrase
instructs that when an attorney advises a client in discovery matters, he assumes
a responsibility for the professional disposition of that portion of a lawsuit and
may be held accountable for positions taken or responses filed during that
process. Sanctions exist, in part, to remind attorneys that service to their clients
must coexist with their responsibilities toward the court, toward the law and
toward their brethren at the bar.10 Rule 37 identifies attorneys advising, or
overseeing, discovery as possible subjects of sanctions along with their clients
and vests the trial court with broad discretion to apportion fault between them,
providing in both subsection (a)(4) and subsection (b)(2) that the award of
expenses or costs may be demanded of a party, or its attorney, or both. The
Advisory Committee Notes to the 1970 amendments insert a single caveat: "It
is not contemplated that expenses will be imposed on the attorney merely
because the party is indigent." Fed.R.Civ.P. 37 Advisory Committee Notes.
Rule 37 makes no presumptions of fault and we reject Ellis' suggestion that an
attorney is immune from Rule 37 sanctions unless his client or opponent proves
otherwise.

29

Along similar lines, Ellis argues that Rule 37 requires the court to make a
finding of bad faith before it may impose sanctions upon an attorney. However,
the 1970 amendments were specifically enacted to eliminate the possibility that
a bad faith requirement would be read into the rule, and they contain no
suggestion that bad faith should remain a prerequisite when an attorney, as
opposed to a client, is subjected to sanctions. Fed.R.Civ.P. 37 Advisory
Committee Notes. In Merritt v. International Brotherhood of Boilermakers, 649
F.2d 1013, 1019 (5th Cir. Unit A June, 1981)11, our predecessor circuit,
confronted with the implacable language of Rule 37, rejected the notion of a
bad faith requirement and came to the "inescapable conclusion" that sanctions

under Rule 37(a)(4) are mandatory unless the court finds a substantial
justification for discovery delays. We are satisfied that subsection 37(b)(2)
likewise demands no demonstration of bad faith.
30

Ellis cites this court's decision in Carlucci v. Piper Aircraft Corp., 775 F.2d
1440, decided after Merritt, in support of a bad faith requirement. As noted by
Magistrate Judge Greene in his report and recommendation, however, Carlucci
merely upheld a district court's earlier findings of bad faith as relevant factors in
the calculation of sanctions without holding that such findings were a necessary
precursor of sanctions.

31

The language "advising such conduct" in Rule 37 does not incorporate either
heightened procedural requirements or a bad faith test into that rule. A trial
court is vested with broad discretion to impose monetary sanctions subject only
to limited due process protection, and the district court in this case committed
no legal error.
C. Substantial Justification

32

We review for an abuse of discretion the finding of the magistrate, adopted by

the district court, that there was no substantial justification for the conduct for
which the court ordered sanctions against Ellis. We are instructed to examine
whether that finding is "fully supported by the record," National Hockey
League, 427 U.S. at 642, 96 S.Ct. at 2780, and to find clear error only if we are
"left with the definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,
541, 92 L.Ed. 746 (1948). We find no such error.

33

The Supreme Court has clarified that an individual's discovery conduct should
be found "substantially justified" under Rule 37 if it is a response to a "genuine
dispute, or if reasonable people could differ as to the appropriateness of the
contested action." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541,
2550, 101 L.Ed.2d 490 (1988) (citations omitted).

34

Magistrate Judge Greene recommended an award of costs and fees for a course
of conduct leading up to and flowing from his order of December 7. Devaney's
motion of October 18 sought to compel responses to his third set of
interrogatories and second request for production of documents. Ellis provided
answers only after the motion to compel was filed and the magistrate, finding
the answers largely unresponsive to Devaney's interrogatories, granted the
motion to compel in his December 7 order. Ellis then failed to comply with the

December 7 order within the allotted twenty days and both Devaney and Speer
filed motions for sanctions (Motions III and IV). The magistrate judge
scheduled a hearing and only then did Ellis file responses. Noting that the
information requested in Devaney's third set of interrogatories included such
simple items as a request for the correct name and address of a Continental
policyholder discussed at the September depositions, the magistrate found no
substantial justification for the failure to comply. The court awarded $825.00
for Devaney's costs of filing the October 18 motion and $504.38 for the costs
of filing the January motion for sanctions.
35

The court also imposed sanctions for Ellis' failure to comply with the May 25,
1990 order granting Devaney's motion to compel answers to interrogatories.
Here again, Devaney filed a successful motion to compel and then a motion for
sanctions when Ellis failed to comply with the court order granting the motion
to compel. The magistrate judge found that Ellis' initial failure to respond to
several of the disputed interrogatories was not substantially justified. Five of the
unanswered interrogatories involved, in the magistrate's words,
"straightforward, clearly discoverable matters," and the court awarded Devaney
the costs of filing a motion in order to secure answers to those requests. In
addition, the magistrate imposed a sanction of $325.00 under Rule 37(b)(2) for
the plaintiff's cost of filing a second motion to encourage compliance with the
court's May 25 order.12

36

In the lengthy sanctions hearing on March 18, Petitioner presented no evidence

that the failures to respond to discovery requests and failures to comply with
court orders were substantially justified. In each case, Ellis simply failed to
provide responses without petitioning the court for extensions of time and
without informing the parties of any hardship. The district court committed no
error in adopting the findings of the magistrate judge and properly adopted the
sanctions recommended, sanctions which demonstrate substantial restraint on
the part of the court given the conduct of the participants in this litigation. The
judgment of the district court is AFFIRMED.

This sum reflects sanctions of $825.00, $504.38, $300.00 and $325.00 assessed
against Ellis for Devaney's costs of filing two motions to compel discovery and
two motions for sanctions to compel compliance with court orders

Our use of a party's name in this factual summary is intended to incorporate,

rather than exclude, a reference to that party's counsel. We do not decide
whether the parties or their attorneys were responsible for the acts which were
the subject of sanctions but merely review for clear error the district court's

decision on that issue. See section II(C), infra. While Ellis directs our attention
to "uncontroverted" evidence that Continental, and not he, caused the discovery
delays at issue, we note that his contentions are uncontroverted only because
neither his former client nor any other party filed a brief in response to his
appeal
3

This notice and objection marked the beginning of a dispute about Continental's
30(b)(6) representative that continued until trial. Several of the motions for
sanctions arose out of Continental's failure to identify its corporate
representative until late in the discovery process

The related appeal filed by Devaney's counsel is no longer pending before this
court

In pertinent part, the rule provides:

Rule 37. Failure to Make or Cooperate in Discovery: Sanctions
(a) Motion for Order Compelling Discovery.
A party, upon reasonable notice to other parties and all persons affected
thereby, may apply for an order compelling discovery....
(4) Award of Expenses of Motion. If the motion is granted, the court shall, after
opportunity for hearing, require the party or deponent whose conduct
necessitated the motion or the party or attorney advising such conduct or both
of them to pay to the moving party the reasonable expenses incurred in
obtaining the order, including attorney's fees, unless the court finds that the
opposition to the motion was substantially justified or that other circumstances
make an award of expenses unjust.

Rule 37(b) Failure to Comply with Order

....
(2) Sanctions by Court in Which Action is Pending. If a party or an officer,
director, or managing agent of a party or a person designated under Rule 30(b)
(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or
permit discovery, including an order made under subdivision (a) of this rule ...
the court in which the action is pending may make such orders in regard to the
failure as are just, and among others the following:
[specific suggestions omitted]....

In lieu of any of the foregoing orders or in addition thereto, the court shall
require the party failing to obey the order or the attorney advising that party or
both to pay the reasonable expenses, including attorney's fees, caused by the
failure, unless the court finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust.
7

Ellis suggests, incorrectly, that the court assessed costs for motions to compel
which were unrelated to the motions for sanctions listed in Magistrate Judge
Greene's February 5 order. A review of the record reveals no such irregularity

In the related context of Fed.R.Civ.P. 11, we noted that "It would be

counterproductive if the rule itself were to cause an increase in unnecessary
litigation by mandating extensive collateral procedures as prerequisites to the
imposition of sanctions." Donaldson, 819 F.2d at 1559

Ellis argues that Magistrate Judge Greene erred in employing the reverse
presumption: that an attorney is liable for discovery misconduct unless he
proves that his client was responsible. Ellis bases this view on the magistrate's
recommendation that sanctions be imposed upon Ellis because there was "no
evidence that the failure to [comply] ... was the result of any conduct on the
part of the defendant Continental." R4-219. Read in the context of the
magistrate's report, however, it is clear that this statement reflects not a
presumption of Ellis' liability but rather the judgment of the magistrate, based
on all the evidence discussed at the hearing and in his report, that Ellis caused
the discovery delays for which sanctions were imposed. This judgment is
exactly the sort that Rule 37 empowers the court to make

10

This principle was eloquently enshrined by Thomas Goode Jones in the 1887
Code of Ethics of the Alabama State Bar Association, the first of its kind in the
nation:
An attorney owes entire devotion to the interest of his client, warm zeal in the
maintenance and defense of his cause, and the exertion of the utmost skill and
ability, to the end that nothing may be taken or withheld from him, save by the
rules of law, legally applied. No sacrifice or peril, even to loss of life itself, can
absolve from the fearless discharge of this duty. Nevertheless, it is steadfastly
to be borne in mind that the great trust is to be preformed within, and not
without, the bounds of the law which creates it. The attorney's office does not
destroy man's accountability to his Creator, or loosen the duty of obedience to
law, and the obligation to his neighbor; and it does not permit, much less
demand, violation of law, or any manner of fraud or chicanery, for the client's
sake."
Canon 10, Code of Ethics, Proceedings of the Tenth Annual Meeting of the

Alabama State Bar Association, (Montgomery, AL 1887).

11

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) we adopted as

binding precedent decisions of the Fifth Circuit, including Unit A of that
circuit, handed down prior to October 1, 1981

12

The $325.00 and $504.38 sanctions were imposed under Rule 37(b)(2). Ellis
argues that Rule 37(b)(2) does not authorize a court to award attorney's fees for
a motion for sanctions because such expenses are distinguishable from
"expenses, including attorney's fees, caused by [a] failure" to comply. See n. 6
supra. We cannot agree. The cost of a motion for sanctions which is filed in
order to compel obedience with a court order falls within the ambit of
"expenses ... caused by [a] failure to comply."