Antagonism Toward Adversary Leads to Sanction
A plaintiff's attorney who repeatedly and without foundation claimed his opponent in Westchester County jail litigation was withholding and spoliating evidence and misleading the court has been sanctioned by a federal judge.
Ossining attorney Michael Deem was cautioned in 2011 by Southern District Judge Shira Scheindlin (See Profile) to "ratchet down" what the judge concluded were baseless personal attacks against then-Assistant County Attorney Shannon Brady over the preservation and provision of evidence in a case brought by his client Patrick Smith over alleged excessive force by corrections officer and emergency response team members at the County Jail in 2005.
But in an opinion issued Monday, Scheindlin said the attorney failed to heed her warning and had an "unyielding determination to cast Brady in a negative light."
"Deem's unsupported allegations of misconduct by Brady were clearly antagonistic, egregious and made in bad faith," Scheindlin wrote in Smith v. Westchester County, 07 Civ. 1803. "Allegations of 'intentional or reckless spoliation' and 'repeated misstatements to the Court' are accusations of unethical conduct in derogation of Brady's professional integrity. When presented as facts, as Deem did here, such allegations clearly rise to the level of sanctionable conduct."
Smith initially claimed he was attacked in the booking area of the county jail on Dec. 5, 2006 by Correction Officers Neil Gottlob and Hugh Rennalls and Sergeant "John Doe" of the County Emergency Response Team (ERT). Seeking $3 million in damages in an action under §1983, he filed a pro se complaint in 2007 and litigated the case himself for four years until retaining Deem.
Deem sought to file an amended complaint in the case that would substitute Correction Officer Derrick Holmes for Gottlob as a defendant after a videotape made it apparent that Gottlob could not have inflicted Smith's injuries, but his motion was denied by Scheindlin on Feb. 12, 2012. At a conference on Feb. 21, 2012, Deem demanded that Brady produce a Jail Control Logbook and Jail Ring Report for the night of the incident. Brady responded that the Jail Control Logbook could not be produced because it was destroyed pursuant to a three-year retention policy, but said she would provide the Jail Ring Report.
Deem then leapt "to the conclusion that Brady admitted to the intentional/reckless spoliation of relevant documents" and said Brady was misleading the court, Scheindlin said.
The judge said he made disparaging comments about Brady in a motion for reconsideration that was denied by Scheindlin in April 2012 in a decision later upheld by the U.S. Court of Appeals for the Second Circuit on June 10 of this year. Meanwhile, the county had moved for sanctions against Deem in May 2012.
"Deem's reconsideration papers levied serious allegations of unethical conduct against Brady, without factual and legal support and any meaningful discussion or analysis," Scheindlin said.