Rule 11 Sanctions for Impugning Character of Opposing Counsel

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Doe I v. Exxon Mobile Corp., 2022 WL 1124902 (D.D.C. Apr. 14, 2022), describes the imposition of a Rule 11 sanction for defense counsel impugning the character of plaintiffs’ counsel in a paper filed in court.  The court wrote:

The Court also ordered defense counsel … [names omitted] …to show cause why they should not be sanctioned for impugning opposing counsel’s character without evidentiary support. … After receiving responses from defense counsel and a reply from plaintiffs, the Court concluded that [names omitted] engaged in litigation misconduct prohibited by Rule 11(b)(3) and admonished them….

Id.  The underlying case is complex, involving an allegation of human rights abuses in Indonesia.  It has resulted in multiple prior published and unpublished decisions since 2005.[1]

After a deposition, plaintiffs filed a motion to compel, and defendants made a cross-motion for sanctions supported by a memorandum or brief.  Plaintiffs’ motion was granted. Defendants’ motion was denied.  2021 WL 1910892, at *1 (D.D.C. May 12, 2021).[2]  The court also expressed “concerns about certain allegations” made by defense counsel because there was no “apparent” support in the record. Id.  It quoted the statements made by defense counsel, and they included allegations that plaintiffs’ counsel was “agitated and combative,” “became unhinged,” “baselessly threatened to seek sanctions,” engaged in “browbeating and disrespectful behavior,” and, was “agitated and aggressive,” etc.  2021 WL 1910892 at *1.

In the Rule 11 decision, the Court stated that “[b]ecause none of the evidence the defendants have cited supports their claims about [plaintiffs’ counsel’s] demeanor and because the Court can locate no support for those claims in the record, the Court has reason to believe that defense counsel violated Rule 11(b)(3). For that reason, the Court will order [defense counsel] to show cause why it should not impose Rule 11 sanctions on them.”  2021 WL 1910892, at *1 (D.D.C. May 12, 2021).

The Court … ordered “defense counsel to show cause by May 14, 2021 why sanctions should not be imposed under Rule 11(b)(3) for alleging that plaintiffs’ counsel was agitated, disrespectful, and unhinged during the deposition despite a lack of record evidence supporting those allegations.”

Id. (emphasis added).

The law firm and attorney responded separately.

The firm “submitted a brief explaining and defending the statements.” Id.  It also apologized for taking “an approach the Court disapproves of….”  Id.  It “explained that it cited portions of the deposition transcript that it believed ‘evidenced plaintiffs’ counsel acting in a frustrated, condescending, or hostile manner’” and asserted that the descriptions were made in good faith.

The attorney submitted a declaration apologizing, regretting her role in the “breakdown of civility,” but stating her belief “that my characterizations of opposing counsel’s demeanor, based on my personal observations, were fair and supported by evidence.” Id. at *2-3.  She stated that “when she submitted the briefs, she believed that her assertions were ‘supported by [her] own recollection, the transcript, and the video of the deposition.’”  Id. at *3. She pointed to an unblemished 27-year legal career and the fact that she had worked on this case for 14 years.

Plaintiffs replied by describing defendants’ explanations as “half-apologies” and “doubling down on their aspersions….”

Noting that other authorities differ, the court held that the brief supporting the cross-motion for sanctions was not a discovery filing that would be excluded from the scope of Rule 11.  It then wrote:

A reasonable attorney would have reviewed the deposition video before making serious allegations about another attorney’s professional conduct. Although defense counsel had access to the video, nothing in the record reflects that defense counsel took that simple step….  And defense counsel had reason to return to the video, because the plaintiffs put them on notice that they believed the video did not support the defendants’ contentions…. Moreover, as defense counsel noted, they defended the deposition in the middle of the night in a “heated” atmosphere…. Neither condition is conducive to a clear memory of the event, so returning to the video would have assisted defense counsel in providing an objective perspective on the deposition. The video was also indicative of the evidence defense counsel could have offered to support their claims. For all these reasons, a reasonable attorney would have reviewed the video. In failing to review the video, defense counsel violated Rule 11(b)(3)….  Indeed, by citing the transcript, instead of the video, defense counsel provided a misleading account of the deposition.

The court concluded that admonishment was the appropriate sanction. Id. at *7.  First, it noted that both the attorney and firm had apologized.  Then, it wrote:

Both should have known better than to impugn another attorney’s character without reviewing the entire record. And neither should have made those accusations without evidentiary support. The Court cannot allow such misconduct to occur without at least rebuking counsel, especially when the misconduct created a substantial complication in resolving the cross-motions for sanctions.

For a general description of the decision, see David McAfee, Exxon Sanctioned $289,000 for Counsel’s Obstructing Deposition ( (Apr. 15, 2022).


[1] E.g., Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005).

[2] The court described the cross-motion as astonishing. 2022 WL 1124902 at *1.