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In re Carey11/26/2002
on, the district court did not decline to grant them a hearing "despite repeated requests" by the defendants. The record clearly shows no such requests were made prior to the imposition of the sanction. The following Monday morning, defense counsel was again allowed to argue against the sanction, and present segments of deposition testimony to bolster the claims made earlier that the letter had been innocently withheld. Defense counsel was also permitted to make an offer of proof on the testimony of Joseph Danis, if he were questioned about the creation and subsequent handling of the letter. However, we find nothing in the offer of proof that is different from the arguments that had already been presented by defense counsel . . . . The lack of any new argument shows that Carey and Danis had a full opportunity to argue their case before the district court. Due process is satisfied if the sanctioned party has a real and full opportunity to explain its questionable conduct before sanctions are imposed. Chrysler Corp v. Carey, 186 F.3d 1016, 1022-23 (8th Cir. 1999).
Accordingly, collateral estoppel applies. The federal "district court found that respondents repeatedly lied during the discovery process, denying the existence of conversations and documents which had in fact occurred and did exist." Chrysler Corp. v. Carey, 186 F.3d at 1021. Consequently, both Carey and Danis are estopped from denying these facts at this time. In applying this doctrine, we must make clear that the federal court sanctions are not used as a basis for automatic discipline. In re Caranchini, 956 S.W.2d at 912. The facts found in the federal proceeding are merely used to make an independent determination of whether the Missouri Rules have been violated. Id. Review of the record reveals substantial and persuasive evidence supporting the facts found by the federal district court.
Both Carey and Danis, in their briefs to this Court, concede that their answers to Interrogatory No. 2 and Document Request No. 12 were inaccurate. Neither Carey nor Danis revealed the meeting with Stan Grossman in New York where Joseph Danis and his father discussed joining Beam with Grossman's class of plaintiffs. Nor did either respondent reveal the luncheon meeting with attorneys from Danis, Cooper and the Blumenfeld firm at which they first discussed aspects of the Beam case. Respondents knew they were receiving correspondence from other attorneys regarding Chrysler ABS cases and still they answered "no such documents exist." Respondents knew that they discussed, even if casually, the Chrysler ABS cases with other lawyers and still they both identified David Danis as the only attorney with whom such communication was made. Respondents knew that Chrysler was specifically seeking discovery on these communications when they were served with interrogatories. Respondents each provided sworn answers to Chrysler's interrogatories on October 28, 1996. Carey & Danis received eleven pieces of correspondence after that date, yet neither respondent amended or supplemented the answers to their sworn interrogatories.
Judge Perry issued orders pertaining to a number of discovery issues, including Document Request Nos. 8 and 25. Request No. 8 required respondents to produce "all documents that pertained or referred to actual or anticipated litigation against Chrysler Corporation regarding anti-lock brakes, heater cores or vehicle latches." Request No. 25 sought "all documents which refer or relate to fee sharing or joint representation agreements with any attorneys or law firms concerning a client represented by Carey & Danis." Respondents told Chrysler and the court that "no such documents exist."
Respondents refuse to concede
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