Sanctions Against Cleary Gottlieb for Discovery Abuses
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Cleary Gottlieb is a law firm of International reputation. But oops.... Judge Preska clearly wasn't impressed with the reasons given by the firm for what was said to the non-party witness when it came to not attending the deposition.
The judge concluded that Cleary tried to dissuade a witness from attending a deposition, in part because of a concern the witness would testify adverse to the firm's client. Preska ordered Cleary to pay the plaintiff's attorneys fees and costs ─ an amount to be determined ─ and ruled that "the sanction is imposed as a formal reprimand and should be circulated to all attorneys at Cleary." (We've never heard of that punishment.)
The lawsuit involves an attempt by Kensington International to enforce a $56.9 million judgment entered against the Republic of Congo in 2004. Kensington subpoenaed Médard Mbemba, a citizen of Congo, in the hopes he knew the whereabouts of Congo's assets, according to the ruling. He was due to be deposed in early 2005.
This is where Cleary, counsel to Congo, comes in. Mbemba did not have an attorney, and Cleary partner Jean-Pierre Vignaud (pictured), a member of the firm's worldwide executive committee, warned him about the risks of attending a deposition without counsel. Vignaud also tried to discourage Mbemba from attending by appealing to his patriotism and telling him that his testimony could hurt Congo, according to Preska's ruling. Mbemba ultimately agreed to be deposed.
Even so, Cleary sought to interfere with discovery in furtherance of its own interests, Preska held, writing that Cleary "has shown a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line." (Kensington is represented by Dechert and Quinn Emanuel; Cleary retained Simpson Thacher to represent them in the dispute.)
I've read the facts and if anyone reads the facts they will see the witness, Mbemba, testified the lawyer told him not to go. "It is not an impression, he told me as such not to go." (Mbemba Dep. 105:22-106:3.) Also, "I want to inform you that your deposition can hurt the Congo," specifically that these are people who buy loans at percent of their value and who are very dangerous. Then they hire lawyers and they can destabilize the economies of countries, and I'm warning you so that you'll know and not participate in this kind of a game because it is a bad thing for your country. ..." ( Mbemba Dep. 104:20 - 105:15.)
Why is Judge Preska's opinion being questioned? By the way, do the tort deformers always hide their names? The opinion finds the witnesses statements more believable than the lawyer's testimony. It further finds the "evidence clearly demonstrates Cleary's attorneys acted without legal justification and in fact acted to delay or obstruct the post-judgment discovery process in this case." (Opinion, page 16.) Judge Preska's thirty-two page decision is very well reasoned and does an exhaustive job of analyzing the facts and then applying it to the law.
As the Judge found, "Here, Cleary did not benefit from its own improper conduct. But Cleary is an ideal candidate for specific deterrence. It has shown a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line." (Opinion, page 29.)
All in all it's not the big a deal for Cleary. It need only reform what its attorneys say to non-party witnesses when communicating about post judgment proceedings.