In an effort to narrow the scope of potential future disclosure were it to be found appropriate, defendants argue that files concerning occurrences subsequent to the incident on which this lawsuit is based are inherently irrelevant and should not be produced. The Magistrate Judge did not so hold. I decline to do so.
Events after a disputed incident often shed light both on the intent of participants, and on institutional or individual patterns of behavior. Depending on the precise circumstances involved, such post-incident occurrences can be highly relevant. See United States v. Ramirez, 894 F.2d 565, 569 (2d Cir 1990); Eatz v. DME Unit of Local Union No 3, 794 F.2d 29 (2d Cir 1986); compare also Fed.R.Evid. 404(b).
A further controversy has been raised with regard to an indication in the Magistrate Judge's written ruling regarded as suggesting by implication that plaintiff's counsel failed to follow a local rule relating to motions, and any future violation would result in sanctions. The local rule violated is not specified, as would be necessary were an actual finding of violation made; it may well have related to timeliness and other requirements for applications for reconsideration under Local Civil Rule 3(j).
Counsel often rightly pride themselves on being willing to take risks in the course of representation of a client - pro bono or otherwise - when they believe they are right. See Landsman, "The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England," 75 Cornell L Rev No 3 at 497 (Mar 1990). It would be contrary to the long-term interests of justice to chill courageous advocacy. See Fales, Introduction to Will the ABA Draft Model Rules of Professional Conduct Change the Concept of the Lawyer's Role? (Ass'n Bar City of NY 1981); Pillsbury, "The Legal Relations Between Bench and Bar," 32 Amer L Rev [later U Pa L Rev] 161, 183 (Mar-Apr 1898); Shawcross, "Functions and Responsibilities of an Advocate," 13 Record Ass'n Bar City NY 483 (1958).
Moreover, special solicitude is important in protecting counsel who represent unpopular or impecunious clients from unjustified adverse consequences of their representation. See D'Souza v. Howell, 794 F. Supp.517, 519 & n 4 (SDNY 1992).
At the same time, the courageous attitude called for by legal professionalism calls for recognition of the appropriateness of robust debate on the part of all participants when they find it justified. In a real sense, litigating lawyers as well as jurists are public figures. See generally New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). Criticism is part of the warp and woof of the legal profession, as in many other areas of activity involving contention;
side adjudication relating to everything expressed would lead to endless mezzanine litigation. Unless actual consequences flow from them,
adjudication of the correctness of comments included in a memorandum issued by the Magistrate Judge would be contrary to the objectives laid down in Fed.R.Civ.P. 1, sentence 2 (the "just, speedy and inexpensive determination of every action"). See Doe v. United States, 261 U.S. App. D.C. 206, 821 F.2d 694 (DC Cir 1987) (R. Ginsburg, J.).
Procedural rules are often the subject of disagreement between jurists as well as lawyers, and no stigma is or should be associated with possible infractions of them unless of a deliberate and harmful nature. The concept of harmless error (Fed.R.Civ.P. 11) is applicable to such infractions, which are frequently found and lead to consequences only where harm to the adversary justifies corrective action. See Gallagher v Donald, 803 F. Supp.899 (SDNY 1992) (documents involved in removal procedure); Thomas v. Yonkers Police Dept., 147 F.R.D. 77 (SDNY 1993) (additional locally required service of process where actual notice received); Eliot, "Inefficiency in the Administration of Justice," 49 Amer L Rev 171, 185-94 (1915); Taft, "The Delays of the Law," 18 Yale LJ 28, 35 (1908); Elihu Root, "Scandal of the Law's Delays," Address of Aug. 19, 1915, reprinted in E. Root, Addresses on Government and Citizenship 177, 181 (1916); see also Moore, "Avoidable Delays in the Trial Courts," 18 Yale LJ 112, 117 (Nov 1908).
No sanction other than the comment itself was imposed by the Magistrate Judge, nor was any attorney mentioned by name; the Magistrate Judge's ruling was not published as are some reprimands where utilized as sanctions. See Roberts v. Lyons, 131 F.R.D. 75 (ED Pa 1990).
I treat the Magistrate Judge's statement regarding local motion rules as an expression of a view that an infraction occurred, which will doubtless be helpful to counsel in avoiding potential infractions in the future, but not as a ruling or reprimand.
The challenged statement concerning the local Civil Rules with respect to motions was not an order, and thus not subject to reconsideration under 28 USC 736(b)(1)(A). In their reviewing capacity, applicable to my consideration of objections to here, courts review operational judgments or orders, "not statements in opinions," Black v. Cutter Laboratories, 351 U.S. 292, 297, 100 L. Ed. 1188, 76 S. Ct. 824 (1956); California v. Rooney, 483 U.S. 307, 97 L. Ed. 2d 258, 107 S. Ct. 2852 (1987).
Plaintiff's counsel's reputation should not, and I have every confidence will not be adversely affected. I also have every confidence that the Magistrate Judge would not impose actual sanctions, notwithstanding the warning, unless a substantial or clearly deliberate violation of one or more rules occurred.
Dated: White Plains, New York
November 22, 1993
Gerard L. Goettel, USDJ
in the absence of
VINCENT L. BRODERICK, U.S.D.J.