An interesting case has emerged from the Eighth Circuit Court of Appeals which removed Judge Dean Whipple of the Western District in Kansas City, Missouri for bias in a contract case. The judge insists that he was pushed over the edge in an exchange with Fred Starrett of Lathrop & Gage in Overland Park, Kansas who represented Sentis Group Inc., and owner Alan Barazi, regarding a contract with Shell Oil Co. to operate 29 mini-mart gas stations in Kansas City.
Th $28 million dispute bogged down over discovery demands. Whipple ordered the plaintiffs to produce documents and tape recordings allegedly made secretly by Barazi of Shell officials. Whipple issued four different orders, ultimately requiring 58 documents turned over to the defense in the final order.
Much of the focus of the decision was on a December 2006 sanctions hearing where Whipple demanded to know if Starrett had turned over the 58 documents. “To them?” Starrett responded.
Whipple responded, “Well, hell yes. Why would you ask a question like that? Hell, yes, to the defendant.” Whipple then cut off Starett and said in part, “I kept telling you to produce stuff, expert stuff. You ducked. You wove … .You must produce them. Jesus Christ, I don’t want any more ducking and weaving from you on those 58 documents.” When Starrett insisted that the court had not ordered the documents to be turned over, Whipple exclaimed “That’s it. I’m done. I’m granting the defendant’s motion to dismiss this case for systematic abuse of the discovery process.” He accused Barazi of lying and added, “What a disgrace to the legal system in the Western District of Missouri … .We’re done. We’re done, done, done.”
Judge Michael J. Melloy of the 8th U.S. Circuit Court of Appeals criticized both parties for “provok[ing]” Judge Whipple. However the panel in a 2-1 decision found that the transcripts “reflect a sufficiently high degree of antagonism to require reassignment of the case on remand.
The court, however, expressed sympathy for the lower court and stated that it was not “blind to the course of conduct that triggered the court’s frustration.” This included a criticism of Shell:
Having reviewed this matter thoroughly, we are neither unsympathetic toward the district court nor blind to the course of conduct that triggered the court’s frustration. We emphasize that our decision rests on the appearance of partiality, not a finding of partiality. We make no comment as to the range of possible remedies available on remand other than to note that neither party behaved in a manner consistent with the spirit of cooperation,openness, and candor owed to fellow litigants and the court and called for in modern discovery. We do not intend to suggest through this opinion that we condone Plaintiffs’ behavior or tactics. Also, it seems clear that at some point in the proceedings, Defendants’ goal shifted from conducting effective discovery to fanning the flames of the court’s frustration and building a case for sanctions.
For the opinion, click here.
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