Counsel Concerns

Sanctions Vacated

The U.S. District Court for the Southern District of New York vacated sanctions issued against an attorney representing the estate of Tarzan illustrator Burne Hogarth, which had sued over rights in Hogarth's works following the release of The Walt Disney Co.'s animated “Tarzan” movie. The named defendant was Edgar Rice Burroughs Inc. (ERB), the owner of the copyrights of the Tarzan author and creator. But after the plaintiffs lost in both the district and appeals courts, the district court issued sanctions against the Hogarth plaintiffs and their attorney David Smallman. The court concluded in part that Smallman had actually found documents before filing suit that undermined the plaintiffs' claims. The parties then reached a settlement under which plaintiffs' and counsel would pay $80,000 to ERB ' $50,000 of that over the document-withholding issue ' whatever decision the district court reached on the plaintiffs' motion to vacate sanctions. Smallman then filed an affidavit with the court stating that he had in fact found the disputed documents much later in the case than the court had previously been held to believe.

In vacating the sanctions ruling, the district court noted: “While the movants have a significant hurdle to overcome, they have shown that exceptional circumstances exist that counsel in favor of a reexamination of the entire record to ensure that the finding of sanctionable conduct accords with what are now undisputed facts. … When the principal finding that was the linchpin for the award is shown to be unreliable, concern for the appearance of justice becomes a significant factor to weigh in the decision of whether to accept newly presented evidence. … Smallman has shown that he did not have possession of the critical documents until shortly before he produced them in discovery. With that finding, the principal basis for imposing sanctions on counsel disappears.” The Estate of Burne Hogarth v. Edgar Rice Burroughs Inc., 00 CIV. 9569 (DLC).

The sanctions against Smallman had included for an attempt to disqualify defense counsel “on the eve of trial” and for a post-verdict motion to correct the record. But the district court concluded: “The two other grounds for imposing sanctions on plaintiffs' counsel were subsidiary, and the inferences drawn in imposing those sanctions were significantly influenced by the finding that other intentional and more significant misconduct had already occurred in the litigation. Without the finding that documents had been intentionally withheld, it is therefore appropriate to vacate the other sanctions imposed through the Sanctions Opinion.”

Sanctions Vacated

The U.S. District Court for the Southern District of New York vacated sanctions issued against an attorney representing the estate of Tarzan illustrator Burne Hogarth, which had sued over rights in Hogarth's works following the release of The Walt Disney Co.'s animated “Tarzan” movie. The named defendant was Edgar Rice Burroughs Inc. (ERB), the owner of the copyrights of the Tarzan author and creator. But after the plaintiffs lost in both the district and appeals courts, the district court issued sanctions against the Hogarth plaintiffs and their attorney David Smallman. The court concluded in part that Smallman had actually found documents before filing suit that undermined the plaintiffs' claims. The parties then reached a settlement under which plaintiffs' and counsel would pay $80,000 to ERB ' $50,000 of that over the document-withholding issue ' whatever decision the district court reached on the plaintiffs' motion to vacate sanctions. Smallman then filed an affidavit with the court stating that he had in fact found the disputed documents much later in the case than the court had previously been held to believe.

In vacating the sanctions ruling, the district court noted: “While the movants have a significant hurdle to overcome, they have shown that exceptional circumstances exist that counsel in favor of a reexamination of the entire record to ensure that the finding of sanctionable conduct accords with what are now undisputed facts. … When the principal finding that was the linchpin for the award is shown to be unreliable, concern for the appearance of justice becomes a significant factor to weigh in the decision of whether to accept newly presented evidence. … Smallman has shown that he did not have possession of the critical documents until shortly before he produced them in discovery. With that finding, the principal basis for imposing sanctions on counsel disappears.” The Estate of Burne Hogarth v. Edgar Rice Burroughs Inc., 00 CIV. 9569 (DLC).

The sanctions against Smallman had included for an attempt to disqualify defense counsel “on the eve of trial” and for a post-verdict motion to correct the record. But the district court concluded: “The two other grounds for imposing sanctions on plaintiffs' counsel were subsidiary, and the inferences drawn in imposing those sanctions were significantly influenced by the finding that other intentional and more significant misconduct had already occurred in the litigation. Without the finding that documents had been intentionally withheld, it is therefore appropriate to vacate the other sanctions imposed through the Sanctions Opinion.”