Plaintiffs are entitled to a new trial and attorneys fees for litigating the mid-trial disclosure of a CPD video of decedent’s shooting in this Fourth Amendment excessive force case. The City denied all along there was a video, and the plaintiff’s litigation theory was based on its nonexistence and the officers making things up. The court analyzes the conduct of the two City lawyers involved who resigned after the opinion came out. The court finds bad faith by clear and convincing evidence. The culpable lawyer even kept it from his co-counsel. Colyer v. City of Chicago, 2016 U.S. Dist. LEXIS 40 (N.D.Ill. Jan. 6, 2016):
Mistakes do happen in discovery. Most often, the mistakes are innocent and no fault can be fairly assigned to the lawyer. But when a lawyer acts unreasonably and the other side does not get all the evidence to which it is entitled, then a remedy must follow to prevent the lawyer’s negligence from unfairly harming the opponent. Even worse, when a lawyer crosses the line into intentional wrongdoing, then more severe punishment is warranted, because our system of justice depends on the honesty and good faith of lawyers to abide by the rules of discovery. For the reasons detailed below, the Court finds that City Law Department attorney Tom Aumann acted unreasonably during discovery. Worse, based on the record evidence, the Court must conclude that City Law Department attorney Jordan Marsh intentionally concealed the existence of the OEMC record that would have led to the discovery of the Zone 6 Audio before the trial.
What Marsh did justifies a new trial, as well as the awarding of all of the Plaintiffs’ attorneys’ fees and costs incurred after February 19 (when he learned of the OEMC record), including post-February 19 preparation for the first trial, conducting it, and the post-trial discovery and briefing. Furthermore, Aumann’s discovery negligence, which occurred much earlier than Marsh’s misconduct, justifies awarding Plaintiffs their attorneys’ fees and costs for all of the first-trial preparation, as well as through the post-trial discovery and briefing. As discussed next, the attorney misconduct triggers various legal grounds on which to premise the sanctions, each of which independently supports particular sanctions. For the sake of analytical clarity, the Opinion divides the analysis into two parts, focusing first on Marsh’s misconduct and then Aumann’s negligence.