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Larry Klayman v. Judicial Watch

August 10, 2011

LARRY KLAYMAN, PLAINTIFF/COUNTER-DEFENDANT,
v.
JUDICIAL WATCH, INC., ET AL., DEFENDANTS/COUNTER-PLAINTIFFS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Over five years ago, Plaintiff Larry Klayman ("Klayman")*fn1 commenced this action against Defendants-Judicial Watch, Inc. ("Judicial Watch"), a non-profit public interest government watchdog organization; Thomas J. Fitton ("Fitton"), President of Judicial Watch; Paul J. Orfanedes, Secretary and a Director of Judicial Watch; and Christopher J. Farrell, a Director of Judicial Watch (collectively, "Defendants")-asserting a variety of claims, including breach of contract, violation of the Lanham Act, and defamation, in connection with events that occurred after Klayman, who was formerly Judicial Watch's Chairman, left the organization in September 2003. Judicial Watch and Fitton in turn asserted counterclaims against Klayman sounding in breach of contract, indemnification, unfair competition, and cybersquatting. Despite the passage of five years, resolution of this action has been needlessly delayed, largely as a result of Klayman's conduct in this litigation. Presently, there is a single motion pending before the Court: Defendants' [342] Motion to Strike, in which Defendants move to strike certain aspects of Klayman's contributions to the parties' revised*fn2 [337-1] Joint Pretrial Statement-specifically, Klayman's (i) statement of the case, (ii) list of witnesses, (iii) list of exhibits, and (iv) deposition designations-on the claimed basis that Klayman has failed to fully comply with the orders of this Court. For the reasons set forth below, the Court concludes that the requested sanction is appropriate under the unique circumstances presented in this case-most notably, Klayman's consistent pattern of engaging in dilatory tactics, his disobedience of Court-ordered deadlines, and his disregard for the Federal Rules of Civil Procedure and the Local Rules of this Court, coupled with the patent failure of the Court's use of lesser sanctions in the past to have any discernible effect on Klayman's conduct in this litigation. Accordingly, upon a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court will grant Defendants' Motion to Strike.

I. BACKGROUND

The Court assumes familiarity with its various prior opinions in this action, which set forth in detail the extensive factual and procedural background of this case. Therefore, the Court shall limit its discussion here to setting forth those facts most germane to the pending motion.

A. A Brief Overview of Klayman's Past Litigation Misconduct

Klayman commenced this action well over five years ago-on April 12, 2006. See Compl., ECF No. [1]. Its resolution has been needlessly delayed, largely due to Klayman's consistent pattern of engaging in dilatory tactics, his repeated disobedience of Court-ordered deadlines, and his disregard for the Federal Rules of Civil Procedure and the Local Rules of this Court. Unfortunately, this Court previously has had more than ample opportunity to recount the history of Klayman's conduct in this litigation. See, e.g., Klayman v. Judicial Watch, Inc., 744 F. Supp. 2d 264, 267 (D.D.C. 2010) (Kollar-Kotelly, J.) (observing that the "[r]esolution of this matter been delayed . . . as a result of Klayman's own repeated failure to comply with the Court's deadlines in this matter."); Klayman v. Judicial Watch, Inc., 256 F.R.D. 258, 261 (D.D.C. 2009) (Kay, M.J.)*fn3 (taking note of the "voluminous number of filings in this case resulting from Klayman's obstinance at every stage"); Order (May 12, 2008) (Kollar-Kotelly, J.), ECF No. [168], at 3 (describing Klayman's efforts to "stonewall" and "obstruct[]" discovery in this action). Over the course of the past five years, this Court has been forced to employ a variety of tools in an attempt to secure Klayman's compliance with the Court's orders and to promote his respect for his litigation obligations. Simply by way of example, those tools have included reminding Klayman of what is expected of him, informally admonishing him, denying his motions without prejudice with leave to re-file, striking his pleadings from the record, subjecting him to monetary sanctions, and precluding him from introducing certain evidence at trial. Despite these measures, Klayman's litigation misconduct has continued unabated.

Revisiting the full array of Klayman's failures in this action is neither necessary nor desirable here. Instead, the Court will recount three examples that have particular relevance to the pending motion-each of which pertains to Klayman's failure to produce documents and information responsive to Defendants' discovery requests.

First, Defendants served their first set of document requests and interrogatories upon Klayman on June 13, 2007. See Mem. Order (Jan. 16, 2008) (Kay, M.J.), ECF No. [98], at 4. Klayman did not respond until one week after his responses were due, "essentially grant[ing] his own request for an extension." Id. at 6. Defendants also considered the substance of the responses to be inadequate and ultimately filed a motion to compel and a motion for sanctions. See id. at 5. In the course of resolving those motions, Magistrate Judge Kay found it "clear" that "Klayman [was] attempting to stonewall Defendants and otherwise subvert the purposes of discovery by providing patently evasive answers, asserting boilerplate objections, and unilaterally making determinations of relevance." Id. at 23. Nonetheless, and although Magistrate Judge Kay found Klayman and his then-counsel's behavior to be "without question unacceptable," Magistrate Judge Kay exercised his discretion to afford Klayman and his counsel "one more opportunity to conduct discovery in a professional and efficient manner." Id. However, Magistrate Judge Kay cautioned that if Klayman's future discovery responses "evidence[d] the same obstructionist tactics that the Court ha[d] already observed," he would consider a renewed motion for sanctions brought by Defendants. Id.

Second, Defendants served their supplemental document requests upon Klayman on November 2, 2007, requests which by and large sought documents relating to Klayman's claimed damages and Judicial Watch and Fitton's counterclaims against Klayman. See Mem. Order (Mar. 12, 2008) (Kay, M.J.), ECF No. [117], at 4, 8-9. When Klayman failed to serve a timely response, Defendants wrote Klayman's then-counsel warning that Defendants would seek the Court's intervention if the documents were not provided. Id. So prompted, Klayman served his written responses on Defendants, in which he asserted various objections and claims of privilege, but nonetheless failed to produce any responsive documents and failed to provide a privilege log substantiating his claims of privilege. Id. at 4-5. Finding Klayman's responses to be inadequate, Defendants provided Klayman and his then-counsel an additional warning that they would seek the Court's intervention if Klayman continued to refuse to produce responsive documents. Id. at 5. Despite these warnings, Klayman failed to produce the documents, and Defendants consequently filed a motion to compel and a motion for sanctions. Id. In resolving these motions, Magistrate Judge Kay concluded that Defendants' position was meritorious as to all but one document request. Id. at 5-12. He found that each of the relevant requests sought information pertinent to this action and determined that Klayman had failed to demonstrate that the requests were improper, and accordingly ordered Klayman to produce responsive documents by no later than March 22, 2008. Id. at 11. Furthermore, troubled that Klayman failed to respond to Defendants' document requests in a meaningful manner despite having already been informally admonished for his failure to comply with his discovery obligations in the past and despite having "ample opportunity" to do so, Magistrate Judge Kay determined that it was appropriate to impose monetary sanctions against Klayman-specifically, the attorneys' fees and expenses incurred by Defendants in bringing their motion to compel.*fn4 Id. Subsequently, this Court affirmed Magistrate Judge Kay's order in its entirety over Klayman's objections. See Order (May 12, 2008) (Kollar-Kotelly, J.), ECF No. [167].

Third, Magistrate Judge Kay held a status conference with the parties following the scheduled close of discovery, during which it became clear that Klayman still had not produced documents responsive to Defendants' outstanding discovery requests. See Order (July 9, 2008) (Kay, M.J.), ECF No. [200]. Based on Klayman's representation during the status conference that he would provide the documents sought by Defendants by no later than July 25, 2008, Magistrate Judge Kay ordered Klayman to produce responsive documents by the designated date. Id. at 2. However, Magistrate Judge Kay "caution[ed] [Klayman] to be mindful of this deadline, and [that] further noncompliance with his discovery obligations [would] expose him to the risk of sanctions." Id. Despite this clear and unambiguous warning, Klayman failed to produce any responsive documents, and Defendants consequently filed a motion seeking to preclude Klayman from testifying or admitting any evidence in support of his claims for damages or in support of his defenses to Defendants' counterclaims. See Defs.' Mot. for Pl.'s Failure to Comply with Court Order, ECF No. [218]. But Klayman did not respond in a timely manner to Defendants' motion nor produce any responsive documents. See Mem. Op. (Mar. 24, 2009), ECF No. [301], at 6. Indeed, at the time Magistrate Judge Kay resolved Defendants' motion more than six months after Klayman's opposition was due, Klayman still had not responded in any way either to the motion or to the outstanding discovery requests. Id. Reaching the merits, Magistrate Judge Kay concluded that Klayman's failure to produce responsive documents severely prejudiced both Defendants and the judicial system itself and found that Klayman acted willfully and with full knowledge that his actions violated the Court's prior orders and the Federal Rules of Civil Procedure. Id. at 8-9. While Magistrate Judge Kay acknowledged that Defendants' proposed sanction of precluding Klayman from testifying or presenting into evidence any documents in support of his damages claims or in support of his defenses to Defendants' counterclaims would "go to the heart of [Klayman's] claims and defenses," he nonetheless found the sanction to be fully appropriate. Id. at 7. In reaching this conclusion, Magistrate Judge Kay took into account, among other things, the prejudice caused by Klayman's conduct, the willfulness of his actions, and the fact that "[p]rior attempts to alter [Klayman's] behavior with the lesser sanction of monetary costs and fees [] proved fruitless." Id. at 9. Subsequently, this Court affirmed Magistrate Judge Kay's order in its entirety. See Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 84 (D.D.C. 2009) (Kollar-Kotelly, J.). In so doing, the Court observed that even as of that late date, Klayman still had made "no representation that he [would] at any point make any efforts to produce the responsive documents at issue." Id. at 96 (emphasis in original). That remains true to this day. In fact, to date, there is no basis for this Court to assume that Klayman even has any evidence either in support of his damages claims or in support of his defenses to Judicial Watch and Fitton's counterclaims.

B. Klayman's Misconduct During Pretrial Proceedings

Following a series of needless delays during the course of discovery, only some of which are described immediately above and almost all of which were attributable to Klayman's refusal to discharge his discovery obligations, the parties finally reached the summary judgment stage in late 2008. On June 25, 2009, this Court issued a decision resolving the parties' cross-motions for partial summary judgment. See Klayman v. Judicial Watch, Inc., 628 F. Supp. 2d 112 (D.D.C. 2009) (Kollar-Kotelly, J.). With the parties' dispositive motions resolved, the case proceeded to the pretrial stage of litigation.

On October 20, 2009, with the three basic aims of furthering the expeditious resolution of this action, discouraging wasteful pretrial activities, and improving the quality of trial through thorough advance preparation by the parties, this Court issued a [330] Pretrial Scheduling and Procedures Order (the "PSP Order") delineating the parties' responsibilities in advance of trial. Pursuant to the PSP Order, the parties were required to, inter alia, (a) meet and confer in person with the goal of preparing a joint pretrial statement, (b) exchange written objections relating to any part of the proposed joint pretrial statement by no later than February 5, 2010, and (c) file their final joint pretrial statement with the Court by no later than March 31, 2010. See PSP Order, ECF No. [330], at 3-4. The parties were expressly warned that failure to conform to the Court's directives as set forth in the PSP Order might, if appropriate, result in the imposition of sanctions pursuant to Rule 16 of the Federal Rules of Civil Procedure. See id. at 1 n.1.

On March 30, 2010-the eve of the parties' deadline to file a joint pretrial statement- Klayman filed a belated request for an extension of time, claiming that he was otherwise occupied with an unrelated legal action in which he served as legal counsel. See Pl.'s Mot. for Two-Day Extension of Time to File Joint Pretrial Stmt., ECF No. [331]. Klayman's request was problematic on a number of fronts. As an initial matter, Klayman's request was not filed at least four days prior to the first impacted deadline, as required. See PSP Order at 2. More importantly, however, it was apparent that despite Defendants' efforts the parties had neither met and conferred to prepare the joint pretrial statement nor exchanged written objections, as required. See PSP Order at 3-4. Indeed, the Court found Klayman "wholly unprepared" to meet the deadlines ordered by the Court and concluded that an extension of time would unfortunately be necessary if the parties were to prepare and submit a joint pretrial statement in compliance with the Court's PSP Order. See Min. Order (Mar. 31, 2010). Therefore, the Court reluctantly granted Klayman's request for an extension, affording the parties until April 2, 2010 to file a joint pretrial statement with the Court. See id.

While the parties managed to meet the extended April 2, 2010 deadline, their [333] Joint Pretrial Statement was deficient in several notable respects. During a status conference held on April 30, 2010, the Court discussed its concerns with the parties' submission at length and directed them to revise and re-file their Joint Pretrial Statement to speak to the Court's various concerns. Specifically, in a written order memorializing the Court's directives during the status conference, the Court identified six specific problems with the Joint Pretrial Statement that required the parties' further and prompt attention. See Order (Apr. 30, 2010) (Kollar-Kotelly, J.), ECF No. [334].*fn5

First, although the parties were required to submit "[a] neutral statement of the case appropriate to be read to the jury," PSP Order at 3, Klayman and Defendants submitted opposing statements of the case, see Joint Pretrial Stmt. at 1-6. Accordingly, the Court directed the parties to prepare a joint and neutral statement of the case appropriate for reading to the jury at the commencement of the trial. See Order (Apr. 30, 2010) at 1.

Second, the parties were required to submit a list of witnesses identifying "all witnesses the party may call if not earlier called by the other party" and "set[ting] forth a brief description of the testimony to be elicited from [each] witness." LCvR 16.4(b)(5). If the opposing party asserted written objections to the proposed witness list, the proponent of the witness was required to respond in writing addressing the objection and citing legal authority supporting its position.

See PSP Order at 4. However, Klayman's list of witnesses offered only a purportedly non-exhaustive listing of twenty-four witnesses or groups of witnesses that would include "[a]ll Judicial Watch employees in the last six years since Klayman left Judicial Watch." Joint Pretrial Stmt. at 25-26. Furthermore, for seventeen of the witnesses or groups of witnesses identified, Klayman unhelpfully described the subject matter of the anticipated testimony simply as "all issues." Id. Even for the remaining witnesses, Klayman merely indicated that he intended to elicit testimony on such vague and broad matters as "fundraising" and "accounting issues." Id. Finally, even though Judicial Watch asserted a variety of general and specific objections to Klayman's proposed list of witnesses, see Defs.' Objections to Pl.'s List of Witnesses and Exhibits, ECF No. [333-3], at 1-2, Klayman failed to provide any response whatsoever to those objections. In light of these failings, the Court provided Klayman the following direction:

Plaintiff must re-file an appropriate list of his proposed witnesses that

(a) clearly and specifically identifies the subject matter(s) on which he proposes each witness to testify and (b) addresses Defendants' objections to Plaintiff's proposed witnesses, as set forth by Defendants in the parties' [330] Joint Pretrial Statement. The Court reminds Plaintiff that his present indication that the witnesses intend to testify on "all issues" is insufficient as it does not permit Defendants to articulate specific ...


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