Closing The Loop

The Ohio Supreme Court won’t stand for ignoring discovery—or lying. Last week, the court indefinitely suspended Cleveland attorney Steven J. Moody, the ABA Journal reports, in a story that comes to us via Ride the Lightning. The suspension came after a client secretly recorded one of their meetings and caught Moody on tape, bragging about his attempts to derail the discovery process and encouraging his client to lie about it in court.

In a per curiam opinion, the court cites a range of conduct violations, including intentional failure to comply with discovery requests, counseling a client to lie under oath, and most memorably, making disparaging (and sexist!) remarks about opposing counsel, all of which trace back to a single employment discrimination case from 2015.


You Can’t Just Ignore Discovery

Here’s what happened, according to the Ohio Supreme Court. In 2015, Elton Barrios hired Moody to represent him in a job bias suit against PNC. Opposing counsel, Siobhan Sweeney, served Moody with routine interrogatories and a notice of deposition, but she received no response. Sweeney then rescheduled the deposition, sent Moody a reminder two weeks later, and even flew from Boston to Cleveland to administer it. But Moody and his client were a no show.

At this point, two months after the initial interrogatories, Moody contacted Sweeney, claiming that his failure to respond to discovery requests was an accident, merely the result of an unorganized office transition. He asked Sweeney to reschedule the deposition for a second time. Instead, citing Moody’s repeated failure to comply with discovery requests, Sweeney filed a motion to compel, which the judge granted, and rescheduled the deposition for later that month.

In a particularly vexing move, Moody did not notify Barrios about his impending deposition until nine days before it was to occur, and when they met to prepare for the deposition seven days later, Barrios brought along his tape recorder. Unaware he was being recorded, Moody stated that he had deliberately ignored Sweeney’s multiple requests for production, lied to a magistrate judge about the delay, and made Sweeney fly into town to just to “f--- with her.”

With regard to Sweeney and the failed depositions, Moody admitted to making the following remarks (lightly edited here due to profanity):

  • “She sent me an interrogatory request for production of documents, and I completely ignored her a-- for a few months. I made her file a Motion to Compel, and then I called her and said, oh, yeah, I’ll get them to you in two weeks. And then I completely ignored her a-- again.”
  • “That’s why I did her like I did her. Because I made that b---- fly into town. And they were calling me a s---.”
  • “So we did a telephone conference with the Magistrate, and I was like, oh, Your Honor, if only I had known, you know. I said, you know, I moved my office, and I didn’t know that she was -- she sent me those things to the wrong address [...] And I said, you know, this wasn’t necessary. So, I wanted to make her seem like an a--.”
  • “Yeah. She isn’t going to want no part of your a--. And this might take all day. Because looks, she’s an arrogant b-----, okay?”
  • “We didn’t send out any discovery. We don’t need it. She might ask you, do you know that your attorney didn’t send any discovery, do you know that you were supposed to be here on, whatever. Did your attorney tell you that you were supposed to be present for those depositions. Yes.”

At a disciplinary hearing, Moody claimed to have walked back some of these statements later in the meeting, in a part that was not recorded, but Barrios denied that this ever took place, and the board found Moody’s claims were not credible.

“Mind boggled” that Moody asked him to lie, Barrios fired him and hired another attorney, before reporting Moody to the Cleveland Metropolitan Bar Association. That attorney, one assumes, went on to comply with his discovery obligations.


eDiscovery Misconduct and Attorney Discipline

When imposing sanctions for attorney misconduct, the Ohio Supreme Court considers individual violations and aggravating factors, as well as sanctions imposed in similar cases.

By outright ignoring Sweeney’s interrogatories, Moody violated Prof.Cond.R. 3.4(d), which prohibits a lawyer from intentionally failing to make a reasonably diligent effort to comply with a legally proper discovery requests by an opposing party. However, the board also sanctioned him for Prof.Cond.R. 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, or deceit because his attempts to delay discovery were blatant and involved deliberate misrepresentations, to both the court and his client.

In a similar case, the court suspended attorney Vincent Stafford for 18 months because he did not respond to discovery requests for more than a year in an attempt to “obfuscate and hinder the truth-seeking process.” Although both attorneys violated Prof.Cond.R. 3.4(d) and 8.4(c), the disciplinary board determined that “Moody’s discovery violations were more egregious and flagrant than those of Stafford” and found that aggravating factors in this case, including gender disparagement, warranted a more severe punishment.

You can watch the full oral argument for the case here.

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