text:
Federal subject matter jurisdiction in the District Court was based on plaintiff's federal civil rights claims. 28 U. S. C. 1331. This Court has jurisdiction pursuant to 28 U. S. C. 1291 as this is an appeal from a final judgment dismissing the case with prejudice, and from various interlocutory orders which became appealable upon entry of the final judgment on May 10, 1996. Timely notice of appeal was filed on June 7, 1996.
1.	Did Judge William M. Skretny err in refusing to recuse himself on motion of the respondent and sua sponte?
2.	Did the court below err in dismissing the case without allowing the respondent to litigate his motion for sanctions?
3.	Did the court below err in denying the respondent attorneys' fees in opposing the motion to cancel the deposition of Frank Bybel, a co-respondent?
4.	Did the court below err in denying the respondent costs?
5.	Did the court below err in enjoining respondent from filing any papers in the District Court?
Attorney and ex-law professor, Jeffrey M. Blum ("plaintiff"), acting pro se, sued a number of professors and administrators of the State University of New York at Buffalo law school ("defendants"), alleging that he was denied tenure in violation of his constitutional and contractual rights. Judge William M. Skretny "requested at the outset that [plaintiff] bring counsel in." [Docket No. ("DN") 215 at 70:2-5] After the lawsuit started, James Ostrowski ("respondent"), a trial lawyer, became co-counsel, but played an extremely limited role in the case with--until the current controversy arose--the acquiescence of all concerned. Later, attorney Frank Bybel ("Bybel" or "co-respondent") became co-counsel to the plaintiff.
MR. BLUM:	Your Honor's listing of persons participating did have one of my co-counsel listed. Defendants have taken the position that the Order bars co-counsel from seeing the documents or participating in the review.
THE COURT:	Do you have co-counsel here today?
MR. BLUM:	He's not here right now, but it's likely he will be coming . . .
THE COURT:	Which one is this?
"Professor Avery's file contains documents that I believe furnish important links of evidence in support of one of the legal theories that is being vigorously pursued."
It was alleged that mention of a so-called "nepotistic tenure hypothesis" in a letter attached to the memo, in conjunction with the aforementioned sentence, violated the protective order. Intervenor also moved to hold respondent and Frank Bybel in contempt if they had any involvement in the letter of June 30, 1994 and moved the court to "inquire" in that regard. Intervenor's counsel later described the motion against respondent as having been made in "two passing references." Defendants' counsel joined in the motions of the intervenor--commencing a "me too" stance that would last throughout the proceeding--and asked for a contempt finding against respondent "if appropriate." [JA 451] Respondent was not mentioned in the body of the affidavit in support of the motion.
"James Ostrowski violated the protective order of Magistrate Judge Heckman by participating in the drafting and distribution of a memorandum to law school faculty members at SUNY at Buffalo."
After the aforementioned events, respondent retained his father, a retired N. Y. S. Supreme Court Justice, to represent him. William J. Ostrowski ("W. Ostrowski") immediately wrote to the court to inquire who drafted "Allegation A". He received a snide letter from non-attorney, Charles C. Ritter (Law Clerk to Judge Skretny). See, DN 200. The letter stated that "it is normally not this Court's policy to entertain non-motions." Though never explicitly admitted, it became apparent that the true author of "Allegation A" was Judge Skretny. [DN 215 at 7].
The very next day, Judge Skretny issued an order setting a briefing schedule in the case. The order now refers to Judge Heckman's order as "directing plaintiff and his counsel, James Ostrowski, to appear before this Court". [DN 192] Respondent's counsel submitted a lengthy brief calling for dismissal. [DN 199] His central argument was the moving parties' failure to comply with Local Rule 39(a) which requires that motions for contempt "shall set forth with particularity the conduct complained of." William Ostrowski called Judge Skretny's "Allegation A" a "total fabrication" [p. 26] He also disputed the court's authority to engage in an "inquiry" in the absence of allegations of misconduct.
A footnote in intervenor's memorandum of Dec. 20, 1993, stated: ". . . a similar inquiry ought to be made with respect to Mr. Bybel." [DN 207 at 19] Judge Skretny responded that "there does not appear in the report or otherwise any direct or circumstantial evidence for an allegation that he was involved in the Avery matter. . . " [JA 250] Judge Skretny again refused to dismiss the motion against respondent and scheduled a hearing to determine if plaintiff was to be held in contempt. Respondent's case was to be dealt with after plaintiff's fate was decided.
In that decision, Judge Skretny again denied having the ex parte communication with Bybel, as well as a prior ex parte communication with Bybel that plaintiff had alleged occurred earlier in the case. Because Judge Skretny's official denial of the two ex parte communications raised additional issues calling for recusal, and because his decision denying recusal itself contained new evidence of bias against respondent, respondent resolved to file a motion to reargue and renew the motion to recuse, this time with the benefit of deposing Bybel.
At a conference on July 31, 1995, W. Ostrowski notified all concerned that the motion to recuse would be renewed and that Bybel would be deposed. On August 4, 1995, all parties were sent notice that Bybel would be deposed on August 16, 1995. No objection was received until about one hour after Bybel was subpoenaed on August 9, 1995. Intervenor's counsel then filed a motion on behalf of Bybel, an adverse party, to cancel his deposition.
At that time, respondent resolved to file the second omnibus recusal motion without waiting for the Bybel deposition since such motions need to be filed expeditiously. That motion, filed on September 22, 1995 [JA 779-817], argued that new evidence of bias existed, including Judge Skretny's improbable denial of the ex parte communications, his refusal to recuse himself from a motion concerning the Bybel deposition in which he had an obvious conflict of interest, as well as derogatory and baseless attacks on respondent and his attorney/father in his decision of July 12, 1995, including an implied charge of perjury against William Ostrowski. Respondent nevertheless hoped that he could supplement his motion once the Bybel deposition was held. That was not to be.
On October 5, 1995, Judge Heckman granted the motion to cancel the deposition on the grounds that "no briefs were submitted" in opposition to the motion. [JA 155] However, in the same order, Judge Heckman mentioned the very papers that were not "submitted" by their file document No.--268. A call to her legal assistant to clarify the mystery was met by a stonewall response: "take it up with the district judge." We did that on October 11, 1995, by filing an objection to Judge Heckman's order. [JA 831] We also moved before Judge Heckman to reargue the order of October 5, 1995. [JA 818] (By that time, the papers allegedly not "submitted" were present in the court file four times.) Both efforts were fruitless as Judge Skretny denied the objection and held the motion to reargue "moot" on October 17, 1995. [DN 298] No oral argument was held on any of the four motions or objections relating to the Bybel deposition.
At the hearing on November 6, 1995 [DN 324], intervenor called two witnesses who her attorney had never interviewed or deposed: plaintiff and respondent. Over numerous objections based on attorney-client privilege, plaintiff testified that "I did not discuss [the memo] with James Ostrowski" on June 29 or 30, 1993. Id. at 68:21-69:3. Over similar objections, respondent testified that he had no discussions with plaintiff about the memo on or before June 30, 1993. Id. at 124:11-15.
Judge Skretny erred in refusing to recuse himself from matters involving the respondent's cross-motion for sanctions against the intervenor and the defendants, who sought to hold him in contempt in connection with plaintiff's letter to some members of the Buffalo Law School Faculty. Judge Skretny allowed co-respondent Frank Bybel to default in answering the contempt motion. It was later learned that Judge Skretny and Mr. Bybel had an ex parte communication in which Bybel was assured he was "out of the case."
Judge Skretny also erred in refusing to allow respondent to litigate his Rule 11 cross-motion for sanctions against the moving parties. They made a baseless motion to hold respondent in contempt. Judge Skretny, however, instead of dismissing the motion, forced respondent to go to trial on the "charges", and even after the motion was dismissed after trial due to a complete failure of proof, respondent was never allowed to be heard on his cross-motion for sanctions. Rather, Judge Skretny stayed the motion, then enjoined respondent from filing papers, then dismissed plaintiff's underlying lawsuit with prejudice. Respondent was also denied costs as the prevailing party, sub silentio.
I.	THE COURT BELOW ERRED IN DENYING RESPONDENT'S MOTIONS TO RECUSE.
Recusal is necessarily the first issue in this appeal. A denial of recusal is reviewed for abuse of discretion. Judge Skretny's hostility and bias toward both respondent and his attorney explains much of what occurred in the court below. That same hostility and bias makes remand to Judge Skretny inconceivable. Were this Court to rule in favor of the respondent and remand to Judge Skretny for further proceedings, such remand would effectively negate the appeal and put respondent at serious risk of being sanctioned.
At the same time Judge Skretny assumed the role of prosecutor against respondent, he assumed the role of defender of his old friend, Frank Bybel. A series of highly questionable legal rulings against respondent now seemed explainable. For example, while the moving parties denied making any allegations against James Ostrowski, Judge Skretny, in a thinly veiled attempt to rescue their frivolous motion, himself made the first allegation against James Ostrowski.
On October 6, 1993, in open court, Judge Skretny handed out a strange document which purported to be an order of Judge Heckman, but which later turned out was penned by Judge Skretny. This document is entitled: "Order and certificate of facts by Magistrate Judge Heckman as to the conduct of James Ostrowski, as attorney for [plaintiff], as related to the matter of contempt." See, DN 200.
Why did Judge Skretny issue "Allegation A"? He makes that clear on January 13, 1994, when W. Ostrowski points out that Judge Skretny has incorrectly referred to "allegations" against respondent: "You were provided with certain language that addressed that in the certificate of facts instrument." [DN 215 at 93:7-9] Earlier the same day, Judge Skretny stated that the "certificate of facts instrument" is not "the charging instrument" in the case. Id at 8.
Judge Skretny's pseudo-explanation for issuing Allegation A is that the plaintiff "filed an omnibus motion in which he requested a more specific statement of the conduct which the Court would be considering in making its contempt finding." Letter of C. Ritter (Judge Skretny's clerk), Nov. 15, 1993, see DN 200. In the motion, plaintiff writes: "The frivolous Avery motion does provide adequate notice of what the possible grounds for contempt would be." [JA 499] He makes no request for a more specific statement in that motion. Thus, Judge Skretny made a false allegation against respondent and, through his clerk, falsely stated his reason for doing so.
In contrast to making up false allegations against James Ostrowski, Judge Skretny, sua sponte, rushed to Bybel's defense when Mr. Vilardo--over four months after Bybel failed to appear on August 23, 1993--said that "a similar inquiry ought to be made with respect to Mr. Bybel." Judge Skretny responded that "there does not appear in the report or otherwise any direct or circumstantial evidence for an allegation that he was involved in the Avery matter. . . " Leaving aside the accuracy of that assertion, why did Judge Skretny sua sponte defend Bybel, a defaulting party? Normally in the law, defaulting parties are held to have waived their right to contest the merits of a motion.
Respondent's counsel moved for recusal in open court on February 25, 1994. Judge Skretny refused to rule on the motion at that time, asserting that the motion had to be made on papers. [JA 742-743] He did, however, flatly deny speaking with Bybel as alleged. [JA 737-738] Judge Skretny then continued to preside over the case without ruling on the motion. Respondent filed a detailed written affidavit for recusal on March 2, 1994. Judge Skretny finally ruled on the motion on July 12, 1995. He again denied the communication with Bybel as well as another ex parte communication alleged by the plaintiff. (Plaintiff alleged that early on in the case, Bybel had an ex parte communication with Judge Skretny in chambers in which Judge Skretny assured him he would treat Blum fairly. See, DN 232 at par. 2.) Judge Skretny also hurled a string of insults against respondent and his counsel, a highly respected retired New York State Supreme Court Justice who served on the New York State Commission on Judicial Conduct for two terms. Most outlandish was his only slightly veiled charge of perjury against respondent's counsel. Judge Skretny said, "I have serious doubts as to Ostrowski's assertion that he did not learn of the alleged conversation until February 23 and 24, 1994." [JA 61] Which is to say, he has serious doubts about whether respondent's counsel perjured himself. Here, Judge Skretny, having already made a false and baseless charge of contempt against James Ostrowski, made an equally baseless and false charge of suspected perjury against William Ostrowski. For it turns out that Judge Skretny did not and could not disclose one single fact that supports this veiled charge of perjury. Since William Ostrowski was respondent's father and co-counsel, this false charge constitutes proof of bias against James Ostrowski as well.
Judge Skretny also made a probably false statement in the decision of July 10, 1995: "The fact that Bybel had been served with the initial contempt motions had completely escaped my attention." [JA 51]. This assertion is contrary to so much circumstantial evidence that any reasonable person would disbelieve it and perceive an impropriety in Judge Skretny's handling of the case. See, JA 800-804. First, Judge Skretny said on October 6, 1993, that he had "reviewed the record" of the contempt motions. [DN 195 at 3-4 (emphasis added)] Second, he said that "Allegation A" was "taken from the order and certification of Judge Heckman . . . and from the parties' motion papers. . . " Id. at 10:2-7 (emphasis added).
We also know that Judge Skretny scoured the motion papers because he needed to review them in order to deny respondent's appeal from Judge Heckman's show cause order. Respondent, in his September 13, 1993 affirmation of appeal [JA 710], explicitly attacked the failure of the moving parties to set forth any facts justifying a contempt citation against him. Presumably, Judge Skretny, while preparing his denial of the appeal and preparing false "Allegation A", searched those motion papers and found nothing save an oblique reference to James Ostrowski and Frank Bybel as co-counsel. [JA 428 (page two and paragraph 18, aff. L. Vilardo); JA 451 (pages one and two and "Wherefore" clause)] Interestingly, Judge Skretny explicitly cites the transcript of August 23, 1993, in building his case against respondent, apparently oblivious to the fact that Frank Bybel was mentioned in the transcript at page 11, line 14. [JA 209]. The above facts also contradict Judge Skretny's statement that "at the time of my decision [Jan. 13, 1994], there were (sic) nothing in the record linking Bybel to this action . . . " [JA 46, n. 5; see also, JA 55].
However, the most telling evidence of Judge Skretny's bias and misconduct is his quashing of the Bybel deposition whose purpose was to provide testimony that would prove he was lying when he denied having two ex parte communications with Bybel. See, Point III, below. This is the clearest example imaginable of a conflict of interest calling for recusal.
Though Judge Skretny denied both ex parte communications, the mountain of circumstantial evidence that contradicts him created an appearance of impropriety mandating recusal: Bybel had no incentive to invent these statements. Judge Skretny had a strong incentive to falsely deny such statements since ex parte communications are contrary to the judicial code of ethics. Judge Skretny's denial is unsworn. Bybel was in fact "let out of the case" in a highly unusual manner, thus corroborating the second ex parte communication. The bulk of the information respondent's counsel obtained from Bybel was not challenged or denied. Bybel's close relationship with Judge Skretny makes the ex parte communications plausible. Judge Skretny made probably false statements about his lack of knowledge about Bybel's role in the contempt motion. Judge Skretny prevented respondent from deposing Bybel under highly unusual circumstances. Finally, Bybel inadvertently admitted part of the substance of the second ex parte communication in open court on November 6, 1995 by stating: "he [James Ostrowski] knows my attorney is Robert Murphy." DN 324 at 36-37. Respondent replied: "Well, I just want to note for the record that was a conversation allegedly between the court and Bybel that he's relating to me."
What was the basis for Judge Skretny's allegation of improper conduct against the Ostrowskis? His argument appears to be that since W. Ostrowski did not assert that Bybel was present on June 29th until March 2, 1994, that he improperly "withheld" that knowledge until that time for strategic reasons. That argument fails on many levels. First, Judge Skretny ignores the context of the assertion. W. Ostrowski was making a recusal motion which was quite obviously triggered by the recent revelation that the Judge had spoken to Bybel ex parte. That revelation had the impact of a light bulb going on in the mind. Previous events which had been puzzling now began to make sense. W. Ostrowski undertook a complete review of the record insofar as it pertained to Bybel and uncovered a pattern of unexplained favorable treatment. That treatment was then explained by the ex parte communication.
Second, we could not have informed the court about Bybel's presence on June 29th if we did not know about it! In that regard, it is significant that respondent was present for only about thirty minutes out of an entire day of proceedings. W. Ostrowski was not present at all that day. After June 29, 1993, our focus was not on investigating Bybel, but on fighting a frivolous motion for contempt. Until learning of the ex parte communication, we had no reason to investigate Bybel's behavior in this matter at all. The court was being presumptuous in assuming that we even knew about Bybel's June 29th appearance until Mr. Blum revealed it in open court on February 25, 1994. The court's baseless attack is also self-contradictory since the court evidently would not have recused itself even if Bybel's presence on June 29th had been revealed earlier. Thus, the court chastised us for not bringing a motion on less substantial grounds than our March 2, 1994 motion which the court denied.
Obviously, prior to February-March, 1994, respondent was aware that Bybel had been served with motion papers, had been sent a scheduling letter by Judge Heckman, and had failed to appear on August 23, 1993. While these facts were indeed puzzling, they presented no ground whatever for bringing them to the attention of the Court. First, we had every reason to believe that both Judge Heckman and Judge Skretny were already aware of the facts. Presumably, all papers before Judge Heckman had been forwarded to Judge Skretny. One would also suppose that Judge Heckman and Judge Skretny conferred about this serious and unusual contempt motion before October 6, 1993, the first proceeding before Judge Skretny. Second, while respondent was aware that Bybel had somehow sidestepped this proceeding, it would have been hypocritical and unethical for respondent to assume the posture of Bybel's prosecutor in a motion which respondent considered utterly frivolous. Thus, the court had no rational basis for criticizing the Ostrowskis' behavior with regard to the timing of their recusal motion and that it did so anyway is further substantial evidence of bias against the respondent.
Contrast the Ostrowskis' behavior on this point with that of all other parties and a different picture emerges. Judge Heckman's utter failure to take action against Bybel for his non-appearance on August 23, 1993 was discussed in detail in the first recusal motion. Judge Heckman--we are led to believe--also told Judge Skretny nothing about Bybel's involvement in the motion. The moving parties' attorneys likewise failed to bring Bybel to Judge Skretny's attention until December 1, 1993 and failed to complain to Judge Heckman that Bybel had filed no papers and had failed to appear for oral argument on August 23, 1993. Respondent is unaware of the reasons for this failure. As the moving parties, however, they had every incentive to ensure Bybel's appearance.
Paradoxically, Judge Skretny explicitly absolved both Judge Heckman and Messrs. Vilardo and Cream in the Bybel matter: "With regard to intervenor's and defendants' counsel, it appears that any involvement by Bybel in such proceedings may have escaped their collective memories." [JA 53] This is difficult to believe since "counsel" discussed Bybel but not James Ostrowski in open court on the morning of June 29, 1993. DN 230 7-8. (Judge Skretny had this transcript in his possession while drafting his allegation of misconduct against respondent.) Further, counsel surely remembered that they had served motion papers on Bybel. In any event, Judge Skretny offered an innocent explanation for the strange behavior of the moving parties, but attacked the Ostrowskis without cause.
Judge Skretny's absolution of Judge Heckman is even more puzzling. He writes: "Judge Heckman's failure to acknowledge and address Bybel's nonappearance poignantly evidences that a good faith oversight may have occurred in connection with these proceedings." The overall meaning of this statement is oblique. Like opposing counsel, Judge Heckman discussed Bybel's imminent appearance on the morning of June 29th. If, in spite of this fact, Judge Heckman made a "good faith oversight" with respect to Bybel, she implicitly threatened respondent with a contempt citation unless he violated client confidences, an interesting contrast in the treatment of two parties similarly situated. Judge Skretny's baseless criticism of the Ostrowskis with respect to the timing of the first recusal motion, and his contrasting absolution of the other parties, constitutes strong evidence of bias against respondent.
Another example of Judge Skretny making allegations against James Ostrowski that surpassed those made by the moving parties appears in his decision of July 10, 1995. There, Judge Skretny points out, obviously after searching the court file for evidence to use against respondent, that respondent must have been in court on June 18, 1993, when the June 29, 1993 appearance was scheduled, or been informed by plaintiff of the June 29th appearance, since no scheduling order had been filed. [JA 49-50] His point, apparently, is to show the extent of respondent's involvement in the events leading up to the Avery tenure file review. Respondent believes the above argument is specious. However, the point here is that Judge Skretny went out of his way to develop information he believes is prejudicial to respondent.
Also, it was fallacious for Judge Skretny to engage in a post hoc rationalization of his initial failure to dismiss, by basing that decision on new information to which respondent had no opportunity to respond. Further, Judge Skretny does not respond to various facts set forth in respondent's memorandum of law, which indicate he was not present on June 18. No moving party alleged he was present on June 18. Addressing the other prong of the argument--Judge Skretny once again assumes as true facts he has no knowledge of in order to strengthen the case against respondent. He argues that respondent must have "discussed the matter of the tenure file and protective order with Blum." (emphasis added). Again, this is yet another example of Judge Skretny alleging facts not even alleged by the moving parties in order to strengthen the case against respondent. This is what happens when a court steps out of the role of impartial tribunal in an adversarial system and assumes the role of investigator and prosecutor.
In his decision from the bench on February 14, 1994, Judge Skretny argued that respondent must have been the third attorney referred to in plaintiff's memo of June 25, 1993, who reviewed the Avery file. He stated: "the only other attorney present that day who Mr. Blum could have been referring to was you yourself." [DN 260 at 6] Here again, Judge Skretny went beyond the allegations of the moving parties and well beyond the facts. Mr. Cream had merely stated: "It may be that in fact Mr. Ostrowski reviewed the file as well; however, I have no present recollection of whether he did or not." [DN 226 at par. 11] In truth, the third attorney was Frank Bybel! [JA 737] A pattern emerges: the moving parties speculate; Judge Skretny takes that speculation as ineluctable truth; finally, the "truth" turns out to be false.
Yet another example of Judge Skretny making factual allegations against respondent that even the moving parties did not make is his statement on January 13, 1994, that "You . . . do not deny that you received a copy or were aware of Judge Heckman's protective order on or before June 29th." [JA 251] First, no one in the case other than Judge Skretny had alleged such notice in an affidavit, so it is meaningless to note a non-denial. Second, respondent's papers did ask for dismissal for the moving parties' failure to make an allegation of notice. [DN 199 at 11, 12, 17-18, 22; DN 210 at 6-9] Third, the docket sheet states that respondent was not served with the order on or before June 29, 1993. Finally, as with many other allegations against respondent, in fact, respondent was not aware of the order on or before June 29, 1993. See DN 324 at 94, et seq. Once again, Judge Skretny makes allegations of fact prejudicial to respondent, which go beyond those made by the moving parties, and which turn out to be false.
Second, Judge Skretny pointlessly defamed respondent in his order dismissing plaintiff's lawsuit. This very disturbing tirade lasted several pages, even though respondent's motion to dismiss the proceedings against him had been granted many months before. In it, Judge Skretny attacked the professional reputations of two members of the bar with unblemished records spanning over fifty years. In the decision, Judge Skretny once again presents us with the strongest possible proof of bias: differential treatment of parties similarly situated. He attacks respondent--who literally pleaded for a quick end to the frivolous proceedings--for "obstructing the opportunity to clear his own name" [JA 22], yet he speaks no ill words about his old friend Frank Bybel, who failed to answer or appear initially, failed to file any papers when finally called before Judge Skretny, and "forced" Judge Skretny to hold a trial in federal court by failing to "clear his name" until two years and six months after the motion was served upon him, which strange behavior was the primary cause of each and every recusal motion complained of by Judge Skretny and of several other discovery motions and briefs which supposedly burdened the court below.
In sum, Judge Skretny was guilty of what Hon. Matthew J. Jasen, speaking at the retirement dinner of Hon. William J. Ostrowski, derisively called, "result-oriented judging." Regardless of the facts and the law, Judge Skretny was determined that James Ostrowski would (1) stand trial with no allegations against him, (2) be forced to reveal confidential client information at such trial, and (3) be denied sanctions and attorneys' fees.
II.	THE COURT BELOW ERRED IN REFUSING TO ALLOW RESPONDENT TO LITIGATE HIS CROSS-MOTION FOR SANCTIONS AND ATTORNEYS' FEES.
In response to the vacuous motion to hold him in contempt, the respondent cross-moved for sanctions and attorneys' fees. Magistrate Judge Heckman at no time mentioned or dealt with respondent's motion, either in the oral argument of August 23, 1993 or in her order of September 3, 1993. Judge Skretny stayed the motion for sanctions on October 6, 1993, pending resolution of the contempt motion against plaintiff and respondent. See also, DN 213. The grounds for sanctions kept multiplying throughout the proceeding as opposing counsel continued to make baseless legal and factual claims in support of their initial frivolous motion. Respondent, however, was unable to incorporate these instances into his motion since that motion had been stayed. Respondent anticipated being able to file an amended and much more detailed motion in the future. That occasion never came.
After dismissing the contempt motion against respondent, Judge Skretny issued a baseless and defamatory injunction against respondent, barring him from filing any papers whatsoever with the District Court. That order remains in place even after final judgment was entered. A previous order barred the plaintiff from sending letters to the court. DN 198. A third order, of Judge Heckman's, stated: "In accordance with the policy adopted by the District Court regarding this action, this Court will no longer accept telephone calls or letters pertaining to this case." [DN 127] Thus, the court below enjoined respondent from litigating his motion for sanctions and from filing a more detailed motion with additional allegations against the moving parties. Instead, the court ended the matter the same way Judge Heckman started it: by ignoring respondent's motion for sanctions. However, "A serious Rule 11 motion is not a gnat to be brushed off with the back of the hand." Szabo Food Serv., Inc. v. Canteen Corp., 823 F2d 1073, 1084 (7th Cir. 1987); see also, Cunningham v. Waters Tan & Company, ___ F2d ___ (7th Cir. 1995). A court's failure to address a colorable Rule 11 motion is error and requires a remand for further proceedings. Griffen v. City of Oklahoma City, 3 F3d 336 (10th Cir. 1993). Thus, while a ruling on sanctions is reviewable for abuse of discretion, we contend that the refusal to hear or rule on such a motion raises a question of law that is reviewed de novo.
"In the event the alleged contemnor shall be found not guilty of the charges made against him or her, he or she shall be discharged from the proceeding and, in the discretion of the Court, may have judgment against the complainant for his or her costs and disbursements and a reasonable counsel fee." See, Appendix A.
The actions of the court below strictly determine the relief sought on appeal. Respondent seeks an order directing the District Court to allow respondent to litigate his existing and proposed motions for sanctions. There is not enough space in this brief to fully detail each and every improper act of the moving parties. Beyond that, there are numerous facts outside the record on appeal that need to be introduced in the motion for sanctions, such as the deposition of Lawrence Vilardo and letters to opposing counsel urging them to withdraw their motion. Thus, final resolution of the issue of sanctions is inappropriate in this appeal. For purposes of this appeal, respondent will merely provide an outline of the main grounds for his motion for sanctions.
A.	THE MOVING PARTIES FILED A MOTION FOR CONTEMPT AGAINST RESPONDENT THAT WAS FACTUALLY AND LEGALLY BASELESS.
The motions against respondent can best be described as an attempt to invent a new type of motion in federal practice involving a unique one-two punch. First, you move to hold someone in contempt on the basis of no evidence whatsoever. Second, you ask the court to investigate the matter in the hope that the court might find some evidence to support the charge. If this Court were to endorse this new form of motion, the possibilities for mischief would be endless. For a hypothetical example in this very case, under the new rule created in the court below, respondent would be able to make a motion for sanctions against the attorney for the intervenor for colluding with Bybel, to cancel the deposition of Bybel for their mutual interest and against mine, then ask the court to "inquire" of Messrs. Vilardo and Bybel whether they did in fact collude to prevent the deposition of Bybel. In the event such evidence was discovered at the inquiry, his motion would be granted. If not, regardless of how much time, money, energy, aggravation, and adverse publicity the motion cost, the result would be a simple dismissal of the motion without costs, sanctions, or attorneys' fees. That is exactly the ending the intervenor and defendants seek. After forcing respondent to litigate this bizarre motion for over two years, they now wish to shake hands and call it even. However, only Alice in Wonderland could call this even.
The moving parties came out well ahead. They successfully harassed and drove out of the case, plaintiff's co-counsel and probable trial counsel, and effectively intimidated any other lawyers away from assisting the plaintiff. This left plaintiff to fend for himself for three years of difficult litigation which ultimately led to dismissal of his case outside the merits. Touch�! The cost of this brilliant but ruthless maneuver is born by the plaintiff and by the respondent, who was forced to spend 28 terrible months litigating a frivolous motion.
The courts have struggled mightily in recent years to deter exactly this type of "cut, scrape, and burn" litigating that drives up the cost of lawsuits, thwarts justice, and engenders public cynicism about courts and contempt for attorneys. Maybe jaded lawyers do not realize it, but most people think being sued is a tremendously disturbing and agonizing experience. Being sued brings one face to face with the coercive power of the government, ready to impose sanctions, penalties and judgments against you if you lose. Since a lawsuit is essentially a threat to use legal force against a person, it must in a civilized and free society be supported by solid factual and legal grounds. Otherwise, the lawsuit itself takes on the nature of a tort, an independent legal wrong. See, In re TCI, Ltd., 769 F2d 441, 445 (7th Cir. 1985). This truth is expressed in concrete form in Rule 11 and similar provisions allowing parties to recover sanctions for frivolous litigation.
Here, the motion papers explicitly attempt to foist on the court the parties' mandatory duty to conduct a "reasonable inquiry" into the facts. While the litigation veered off on the issue of whether the court can or should do so, the critical fact here is that the moving parties arrogantly, lazily and explicitly shifted their burden of inquiry onto the court.
If respondent's motion for sanctions is denied, lawyers will be able to effectively repeal Rule 11 simply by adding certain magic words to their motion papers. If they call their motions "conditional" and ask the court to "inquire" whether they have any basis in fact, they immunize themselves from sanctions under Rule 11. The magic word "conditional" absolves them of any obligation to investigate their claims before filing, and the magic word "inquiry" absolves them of any duty to establish a basis for their claims after filing. The final result will be similar to what occurred here: A motion was made to hold an attorney in contempt. The moving parties lacked evidence of his guilt before filing. They failed to discover any evidence after filing and before trial. A trial was held at which the moving parties called two witnesses without having the slightest idea what they would say. No evidence of wrongdoing was introduced. The motion was dismissed two years, three months and twenty-four days after it was brought. This is the model of federal civil litigation proudly put forth by both judges below and by the moving parties, constituting a small army of law professors. This is the model of litigation respondent and his attorney have been viciously attacked for opposing.
No facts are alleged to indicate that respondent was involved in the drafting of the unofficial letter. No facts are alleged that respondent was served with or had notice of the order alleged to have been violated. Instead of alleging facts in support of the motion, the motion papers stipulate to ignorance in the matter.
It is, however, "insufficient under the standards of Rule 11 simply to stake out a position and rely on the results of a post-filing discovery as a form of fishing expedition." Agristor Leasing v. McIntyre, supra at 152. As the Third Circuit has stated, "A shot in the dark is a sanctionable event . . ." Garr v. U.S. Healthcare, Inc., 22 F.3d 1274 (3d Cir. 1994).3 A New York court, in a medical malpractice case, wisely sanctioned a prominent law firm for "employ[ing] a strategy of proceeding to trial and the examination at trial of the defendant . . . in the hope that he would provide some previously undiscerned evidentiary predicate on which to base a claim." Forstman v. Arluck, 149 Misc. 2d 929 (Sup. Ct. Suffolk Co. 1991) (emphasis added). Another New York court sanctioned an attorney whose motion "promised to furnish additional supporting papers in the future." Rosenman, Colin, Fruend, Lewis & Cohen v. Edelman, 165 AD2d 533 (1st Dept. 1991). The moving parties here did not even promise that much. In fact, the intervenor boasted that the motion against respondent was made "in two passing references".4 [DN 207 at 13] "Passing" in this context means "casual, cursory, incidental". Webster's (2nd College Edition). The casualness of the motion was also indicated by intervenor's mysterious statement on December 20, 1993: "Either Mr. Blum or co-counsel ought to be asked about co-counsel's participation. . . " [DN 207 at 19 (emphasis added)] This statement is a virtual admission of the pointlessness of the motion against respondent. If intervenor's counsel's attitude was casualness, defendants' counsel's attitude was confusion. Though Mr. Cream was assigned the task of protecting the Avery tenure file, and he insisted that he be present at all times while it was being reviewed [DN 230 at 3:1-6], he did not know if respondent had looked at it. [DN 226 at par. 11] Further, he noted on February 13, 1994, that he had listed the transcript of June 18, 1993, as a proposed exhibit for the hearing of February 25, 1994 (see, DN 218), thinking it was the transcript of June 29, 1993. [DN 260 at 42, et seq.] However, the transcript of June 29, 1993, morning session, did not exist until February 23, 1994. The afternoon session was never recorded at all. Then, he stated that the non-existent transcript had been sealed by Judge Heckman, which statement was false. Judge Heckman in fact "took under advisement" a motion to seal the non-existent transcript of the afternoon session, but never issued a ruling. Mr. Cream, however, on February 13, 1994--many months after moving to hold respondent in contempt, asked Judge Skretny to review the non-existent transcript with a view to unsealing it, because it would "perhaps shed some light on Mr. Ostrowski's presence and his knowledge of the protective order. . . " [DN 260 at 43-44] Mr. Cream should have shed light on these facts prior to making a motion. Also, both Mr. Cream and Mr. Vilardo opposed respondent's many attempts to depose and call as witnesses persons who were present at the afternoon session--Cream, Avery, Vilardo, and Bybel--to testify to the very same facts the non-existent transcript would have shown.
"[T]hey relied on his inquiry to justify the entire cause of action. . . Rule 11 requires that an attorney signing a pleading must make a reasonable inquiry personally. The advantage of duplicate personal inquiries is manifest: while one attorney might find a complaint well founded in fact and warranted by law, another, even after examining the materials available to the first attorney, could come to a contrary conclusion." Garr v. U. S. Healthcare, Inc., supra at 1280. If the Attorney General's Office had merely exercised some independent judgment in this case, that would surely have encouraged Mr. Vilardo to withdraw his motion. Instead, they deliberately chose a cheerleader approach, lending the motion moral support at each and every stage. They should be sanctioned accordingly.
Other facts, not mentioned in the original casually confused motion, add to the overall frivolity. The moving parties did not think respondent was important enough to serve any papers on prior to the contempt motion. Further, Judge Heckman did not think respondent was important enough to allow him to see the Avery tenure file. This is made clear in paragraph 3 of her order [JA 122], which allows co-counsel to learn about a document that "is determined to be relevant." Nowhere does the order give co-counsel the right to examine the file prior to a determination of relevance. Further, respondent in fact did not examine the file, a fact known to the moving parties because they were within a few feet of the file while it was being reviewed. Additionally, respondent was only present for a few minutes while plaintiff was reviewing the file. Thus, the moving parties sought to hold respondent in contempt for helping to reveal the contents of a file he had never seen in violation of an order he did not know about.
Though the movants later presented a myriad of post hoc rationalizations and explanations, each ill-conceived, to justify the initial motion, the facts known to the moving parties when they so moved were naked of any legal or factual content that implicated the respondent. See, International Shipping Company, S.A. v. Hydra Offshore, Inc., 875 F2d 388, 390 (2nd Cir. 1989) (criticizing "post hoc sleight of hand" in Rule 11 litigation).
The order alleged to have been violated is dated June 29, 1993, while the date of the alleged violation is June 30, 1993. The official court docket sheet proves that respondent was not personally served with a copy of the order on June 29, 1993. Intervenor's counsel stated that the order was "issued early in the day" [DN 215 at 87:2-3], however, he knew respondent was not there early in the day. See, DN 230. Nevertheless, he stated, in a brief: "surely he knew that the Court had issued an order permitting review of those documents only under strict restrictions." [DN 207 at 16 (emphasis added)] Then, contradicting himself, he writes: "If there is any doubt about this, then this Court can inquire. . . " Id. (emphasis added). First, he falsely asserts (guesses) in a brief that respondent had notice (see, DN 324, pp. 93, et seq.), then he hedges and once again asks the court to find out. Though a copy of the order was mailed to respondent, the moving parties were unable to prove when he received the order or read it. Id.
Second, the underlying contempt motion against the plaintiff was extremely dubious. Leaving aside the merits, the moving parties never produced a single witness to substantiate their claim that Professor Avery was damaged by the letter. Intervenor's counsel bombastically wrote, "Dianne Avery's reputation has been irreparably harmed by the plaintiff's memorandum." Though intervenor submitted an affidavit from professor Frank Munger, he makes no assertion that his view of Avery's reputation has soured as a result of the memo nor does he allege which documents or contents thereof in Avery's tenure file have been disclosed to him. [DN 173] By making the memo known to Avery initially, Munger demonstrated that he is an ally and friend of Avery, not one whose opinion of her was damaged by the memo.
Thus, respondent's reaction on reading the motion papers afresh for this appeal, was to think back to what his torts professor at Brooklyn Law School told us, "De minimis non curat lex." (The law doesn't deal with trifles.) All this trouble because one5 friend of hers received a memo that explicitly denied accusing Avery of being unqualified? Unlikely. While there is no evidence that Avery was harmed in any way by the memo, it is indisputable that she has greatly advanced her career prospects at the Buffalo Law School by knocking respondent out as co-counsel and by helping to terminate plaintiff's lawsuit outside the merits. Intervenor's counsel's statement that respondent wanted to be a "cause celebre" [DN 207 at 13] was therefore a Freudian slip; that role was aggressively sought and already occupied by Avery at great and continuing expense to all concerned.
Turning then to the alleged merits of the motion, we see at best a metaphysical quagmire. The motion papers piece together words from two separate memos, ignore all other words in the memos, and place on certain words a special meaning known only to the intervenor. Plaintiff and respondent's able counsel below have argued that the order was not violated because no contents of any document were revealed. Neither opposing counsel nor the court was able to specify a document so disclosed. The protective order, however, contemplated the revelation of a specific document: "At any proceeding to impose sanctions upon Plaintiff for his violation of this order, the burden shall be upon Plaintiff to prove his prior knowledge of the information revealed by him." [JA 123 (emphasis added)] The failure to provide specifics in this regard, not only proves that the order was not violated, but further proves that plaintiff was deprived of his explicit right under the order to prove prior knowledge.
B.	THE MOVING PARTIES VIOLATED LOCAL RULE 39 BY FAILING "TO SET FORTH WITH PARTICULARITY THE CONDUCT COMPLAINED OF."
"The affidavit upon which such notice of motion or order to show cause is based shall set forth with particularity the misconduct complained of . . . "
The motions against respondent violated Rule 39(a) in two ways. First, they failed to comply with the particularity requirement. The intervenor's motion states that co-counsel should be sanctioned "if they knew about or in any way participated" in the alleged contempt of the plaintiff. The defendants' motion says they should be sanctioned "if appropriate". The use of such generalities violated the particularity requirement.
The second reason why the motions failed to comply with Rule 39(a) does not appear to have been grasped by the moving parties or the court below. Even if the particularity requirement had been complied with, there was no "misconduct complained of" by the moving parties. They made no allegation that respondent had engaged in misconduct and they explicitly denied that they had done so.
After respondent's counsel took note of Local Rule 39(a) in his brief of November 30, 1993, the moving parties responded by--well, actually, they didn't respond at all. Local Rule 39(a) is not mentioned in those documents. This failure is noted in respondent's submission of January 10, 1994 (p. 4).
One would have thought that an impartial tribunal would have dismissed the motion at that point for failure to comply with its own rules, especially since the moving parties failed to offer any argument in response. The court, however, sua sponte, rescued the motion from dismissal by arguing that Local Rule 39(a) was followed. The court did so by referring to the moving parties' "allegations" against respondent. [JA 260] In her brief of December 20, 1993, the intervenor said, the "motion did not accuse Mr. Blum's co-counsel of wrongful conduct."
C. THE MOVING PARTIES FILED A MOTION THAT WAS UTTERLY UNNECESSARY TO PROTECT THEIR CLIENTS INTERESTS.
Finally, the inquiry requested by the moving parties, even if authorized by law, is logically separable from the motion to hold respondent in contempt. They arguably could have moved for an inquiry without moving against respondent for contempt. Thus, the parties' frivolous motion cannot be rescued by reference to their extremely dubious request for an inquiry.
D.	THE MOVING PARTIES FILED A MOTION THAT RAN AFOUL OF THE ETHICAL AND EVIDENTIARY ATTORNEY-CLIENT PRIVILEGES.
The moving parties presented three arguments to overcome respondent's assertion of the attorney-client privilege, each of which was legally baseless, and each of which was substantially rejected by the court.
Waiver. Intervenor argued below that the plaintiff waived the attorney-client privilege by making the memorandum public. [DN 207 at 14] In the one paragraph argument, no citations are supplied. Neither were any supplied in a brief dated February 9, 1994. [DN 217] The plaintiff clearly had not waived the privilege because he had not disclosed any attorney-client communications. The court initially ruled in favor of the intervenor on this point, however, it reversed its ruling [DN 229] in response to a brief filed by the respondent.
Self-defense exception. Intervenor argued that respondent may be compelled to reveal client confidences under DR 4-101(c) on the ground that this is necessary to defend himself against an accusation of wrongful conduct by someone other than his client. [DN 207 at 13-14] The court initially accepted intervenor's argument but later reversed that ruling in response to a brief filed by the respondent. In that brief, respondent argued that the self-defense rule, designed to be exercised at the option of the accused attorney and only "after careful study and deliberation" [Morin v. Trupin, 728 F. Supp. 952, 957 (S.D. N.Y. 1989)], was being used as a weapon with the intention of harming both him and his client. The exception also did not apply because there was no valid accusation of wrongful conduct against respondent. In fact, counsel for the intervenor denied making such an allegation. Finally, the exception did not apply because it was not "necessary" for respondent to reveal any client confidences to defend himself. The movants presented no evidence and could present no evidence that respondent had done anything wrong.
When all these exceptions to the privilege had been rejected, the moving parties outsmarted themselves by arguing that the attorney-client privilege did not apply at all to their proposed initial question: "whether he and Mr. Blum discussed the memorandum." [DN 276 at 12] While the court below ruled in favor of the moving parties, and respondent was forced to answer that question, that ruling in no way salvages the motion from a claim of frivolity. That is because either answer to the question terminates the proceeding in respondent's favor. If respondent had given advice to the plaintiff, then it would be privileged. If he had not--as indeed he had not--then there would be no basis upon which to seek sanctions against him. It is a measure of both the moving parties' bad faith and the court's bias against respondent, that the respondent was forced, on motion of the moving parties, to reveal confidential information about a client, in open court, for no lawful purpose.
III.	THE COURT BELOW ERRED IN DENYING SANCTIONS AND ATTORNEYS' FEES ON THE MOTION TO CANCEL THE DEPOSITION OF FRANK BYBEL.
Respondent, preparing for trial and renewal of his recusal motion which the court had implicitly authorized (See, DN 262, p. 3), subpoenaed Bybel, his co-respondent to appear at a deposition. Intervenor, who had moved to hold Bybel in contempt and to have an inquiry of him, moved to quash the subpoena. [JA 717] Since the motion was frivolous and in bad faith, respondent cross-moved for attorneys' fees. [JA 746 at seq.] The court granted the motion to quash the deposition of Bybel and denied attorneys' fees to the respondent. This order is reveiwable for abuse of discretion.
This is how the Bybel deposition was killed. Judge Skretny, whose denial of ex parte communications with Bybel was to be the main subject of the deposition, appointed Judge Heckman to hear the motion. Judge Heckman, who refused to have oral argument of the motion, sua sponte canceled the deposition allegedly to allow respondent to file papers, then pretended that respondent had not filed thirty-three pages of motion papers in opposition to the motion [DN 268], and granted the protective order by imaginary default. [DN 282] Then, her law clerk stonewalled when respondent's counsel Salvatore Abbate asked him for an explanation of these bizarre events. Finally, Judge Skretny (1) denied respondent's objection to the protective order and (2) inaccurately deemed respondent's motion to reargue the protective order "moot" because he had denied respondent's objection to the default protective order. Thus, respondent was denied a hearing on the merits of the motion to cancel the Bybel deposition by Judge Skretny, who had no business having anything to do with a deposition which was designed to prove that he had lied on the bench. This really happened!
The motion to quash the subpoena of Frank Bybel was so outrageous that it arguably merits disciplinary action. First, the motion was completely baseless, both procedurally and substantively (see discussion below). Second, the motion contained deceptive statements. For example, while noting that respondent's first recusal motion had been denied, it failed to note that respondent had announced his intention to depose Bybel at a conference on July 31, 1995, and that no one had protested. It argued that the deposition was not relevant to any pending matter (par. 30), but failed to note that respondent had announced his intention to renew the recusal motion and that the court had implicitly authorized such a motion. Third, the motion papers disingenuously stated that respondent could "inquire" of Bybel in court on November 6, 1995 (par. 32), when the court had made no provision for such an inquiry. Finally, the motion was brought for the purpose of denying respondent his due process right to an impartial adjudicator. See, Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).
There were two purposes to deposing Bybel. First, Bybel had told four lawyers that he had at least one ex parte communication with Judge Skretny. Judge Skretny denied both ex parte communications. Proof under oath of at least one of the ex parte communications, which respondent was positive would be forthcoming, would have provided indisputable grounds for Judge Skretny's recusal. Leaving aside other reasons, the mere fact that a party presents sworn testimony from a lawyer that a judge lied for the purpose of denying an allegation of misconduct and a motion to recuse, would establish an appearance of impropriety meriting his recusal.
Respondent also sought to depose Bybel because he was present on June 29, 1993 (the day the intervenor's tenure file was reviewed), and respondent sought to inquire what he knew about the events of that critical day. Intervenor raised no objection to deposing Bybel after being put on notice at a conference on July 31, 1995 and by letter of August 4, 1995, until about one hour after Bybel had been served with a subpoena on August 9, 1995. Then, intervenor, who had made and was still making a motion for an inquiry of Bybel, moved to prevent respondent and herself from so inquiring of him!
Of course, intervenor had no standing to move for a protective order on behalf of her adversary. Nor could she demonstrate any prejudice that could arise from the deposition. Having no legal merit, the motion was obviously designed to deprive respondent of testimony that would buttress his motion to recuse. Since respondent has a due process right to an impartial tribunal, and the motion to recuse was the vehicle for securing that right, intervenor's intentional sabotage of the Bybel deposition merits the strongest possible sanctions. Beyond harming respondent's narrow interest in justice in his own case, intervenor's motion also prevented the public from learning about whether a federal judge had made materially false statements from the bench and in official court documents. See, DR 7-102(A)(1); EC 7-39.
IV.	THE COURT BELOW ERRED IN FAILING TO AWARD COSTS TO THE RESPONDENT AFTER THE MOTION AGAINST HIM WAS DISMISSED.
As prevailing party in the contempt motion, respondent was entitled to an award of costs. Federal Rules of Civil Procedure 54(a) & (d); cf., Local Rule 39. The final judgment is silent on this point and respondent was barred by the court's injunction from filing a motion to amend. Counsel did serve a motion for costs, however, since the injunction was never lifted, the motion was never filed. The actions of the court, then, amount to a sub silentio denial of costs to the respondent that is reviewable for abuse of discretion.
Respondent not only succeeded in having the motion for contempt dismissed, but prevailed on other matters as well. Respondent succeeded in persuading the court to reverse itself on two issues of privilege (waiver and the self-defense exception). Respondent also substantially prevailed on the third privilege issue raised by the moving parties: the crime-fraud exception. The court declined to invoke that exception at the hearing on November 6, 1995, and in fact upheld objections on the ground of attorney-client privilege. E.g., DN 324 at 117.
Additionally, respondent served the valuable role of calling the court's attention to errors that had been made in the case by Magistrate Heckman and Judge Skretny, i.e., overlooking Bybel. Presumably, since the court eventually held a hearing on Bybel after we pointed out the disparate treatment he had received, that revelation must be considered to have benefited the court in resolving the case below.
V.	THE COURT ERRED IN ENJOINING RESPONDENT FROM FILING ANY FURTHER PAPERS WITH THE CLERK.
The court's injunction against respondent "filing any further papers [in the case] . . . without further order of this Court," [Doc. No. 300, p. 9], issued when the only conceivable papers yet to be filed were for costs and sanctions, was a violation of due process. That respondent's main contentions in the case were correct, and that the moving parties' main contentions in the case were incorrect, has already been argued. Any strong language in respondent's papers was in response to and purely descriptive of gross improprieties that had occurred in the case. As respondent and his father were viciously and falsely maligned for calling the court's attention to these improprieties, we continued to use language purely descriptive of the strange goings on in District Court.
Beyond these general considerations, a more detailed examination of the record indicates that the large majority of respondent's filings were either responsive to motions brought by other parties or were requested or authorized by the court itself. Just by way of example--since Judge Skretny's attacks on respondent are couched in generalities--one document filed by respondent, DN 285, an affirmation nine sentences long, was made necessary because two documents, one of which Judge Heckman stated had not been filed, were "in chambers" on a prior visit to the clerk's office. Another document, which Judge Skretny implied was the straw that broke the camel's back, was about three pages long. [DN 294] One purpose of that document was to reply to a request from Judge Skretny that respondent "advise [him] in short order" [DN 324 at 145:8] whether he considered a motion (re the depositions of intervenor and Mr. Vilardo) moot! Respondent did so advise the court that the motion was moot, except with respect to attorneys' fees. The affirmation also asked for leave to present new facts not known when a prior affirmation was filed.
As for the merits of respondent's papers, the most significant fact is that respondent was the prevailing party in the lawsuit. In addition, as previously noted, there were several pretrial rulings in favor of the respondent. On the third contested issue of privilege (crime-fraud), the court eventually declined to invoke the exception. The court granted respondent's motion to withdraw as plaintiff's attorney, and to restore a document to the court file. Finally, the court partially ruled in respondent's favor regarding the deposition of Lawrence Vilardo. There is thus no merit whatsoever that respondent's filings were improper in any way. The court's order was an abuse of discretion.
VI.	RESPONDENT'S OPPOSITION TO THE MOTION TO HOLD HIM IN CONTEMPT WAS MANDATED BY HIS DUTY TO HIS CLIENT.
Judge Skretny, in his decision of May 9, 1996, states: "Why James Ostrowski spent months obstructing the opportunity to clear his own name is beyond the pale of comprehension." [JA 22] Lawrence Vilardo accused respondent of frivolously asserting the attorney-client privilege when there "apparently" was not a communication. [JA 589] Since respondent's professional ethics are directly challenged by such remarks, and because, if left unchallenged, such remarks could influence the Court's rulings with respect to respondent's motions for sanctions and costs, he answers them here and now, leaving aside the many fallacies imbedded in both statements and attempting to take them at their face value.
The most obvious and indisputable reason why respondent claimed privilege on August 23, 1993 and maintained that position until directly ordered to reveal privileged information on November 6, 1995 was that he was compelled to do so by elementary principles of legal ethics. Cannon 4 of the Code of Professional Responsibility states: "A lawyer should preserve the confidences and secrets of a client." This principle means it is nobody's business what has or has not transpired between a lawyer and his client.
It is therefore absolutely stunning that anyone was surprised in 1995 when respondent testified that plaintiff had not in fact consulted him in advance. When did he suggest to anyone that he did? It was certainly not respondent's duty to inform the court that (1) he did not speak with Mr. Blum and (2) that the court therefore had an interesting threshold question on the evidentiary privilege to rule on.6 As silly as that scenario is, respondent could not have done so because of the ethical duty of confidentiality.
Judge Skretny's and Mr. Vilardo's shock at respondent's testimony is thus as disingenuous as Claude Rain's "shock" that there was gambling going on at Rick's nightclub. For his part, Judge Skretny ruled that similar testimony was barred by the attorney-client privilege as early as the hearing of February 25, 1994, when plaintiff successfully asserted privilege in response to the question: "did you communicate [the memo] to anyone?" [DN 259 at 78-81] Thus, respondent had thought that ruling established the law of the case on that point. As for Mr. Vilardo, and his claim that "James Ostrowski and his attorney helped to multiply those hours by frivolously claiming an attorney-client privilege when . . . there . . . apparently never was any attorney-client communication to protect" [JA 589], he never contested respondent's explicit claim of privilege as to whether there was a communication before the hearing of February 25, 1994. He did not challenge the ruling of February 25, 1994, and he failed to raise the issue until August 31, 1995 [DN 276 at 12], over two years after respondent first asserted the attorney-client privilege. It is not respondent's job to help Mr. Vilardo practice law. It is his job to preserve the confidences of his clients. Thus, the first reason why respondent remained silent was that he was compelled to remain silent by New York State law. We use that term advisedly since Mr. Vilardo and Judge Skretny apparently suffer from a misunderstanding of the federal system as it relates to the regulation of attorneys. Judge Skretny believed, incorrectly, that his ruling on the self-defense exception to the attorney-client privilege freed respondent from the ethical duty of confidentiality. [DR 4-101(C)(4)] Regardless of what Judge Skretny ruled, however, respondent's license was granted by the Supreme Court of the State of New York, Appellate Division, Second Department, and Judge Skretny lacked the power to grant respondent immunity from disciplinary action taken against him for ratting on a client in a federal proceeding!
The self-defense exception is treated elsewhere herein, inasmuch as it was part of an endless series of frivolous arguments made by the movants. Here, we will merely add that, at no time before trial could respondent ethically invoke the self-defense exception for the obvious reason that respondent was completely innocent of any wrong-doing, and his opponents lacked any evidence that respondent had engaged in any improper act.7 Thus, the necessity element of the self-defense exception was not present.
Though written in the context of criminal law, this passage clairvoyantly portrays the costs of the present inquiry motion in this civil action.
Thus, there never was any mystery about why respondent refused to provide confidential information about a client, absent a court order. The mystery is why the court and counsel were ever puzzled by the refusal.
1 Misspelled "Videl" in the transcript.
2 The transcript erroneously attributes this statement to Mr. Cream. The official audiotape indicates that the statement was made by Mr. Vilardo.
3 It is irrelevant here that this Circuit apparently allows consideration of after-acquired information in defending against Rule 11 motions since the moving parties' "shot in the dark" missed.
5 The moving parties never made clear how many faculty members received the memo. None, however, other than Munger provided an affidavit.
6 Under the peculiar circumstances of this case, respondent reasonably claimed privilege as to whether plaintiff consulted him in advance.
7 Respondent was concerned throughout about being sanctioned under some theory of negligent supervision. See, e.g., Brief of Intervenor, August 31, 1995, p. 8. However, for obvious reasons, the self-defense exception would not have helped fend off that charge. He had another concern even though he had engaged in no alleged misconduct: whether his testimony would be believed by a hostile court. That is why he sought to depose and call as witnesses several persons with knowledge of the events of June 29, 1993 and his limited role in them: Bybel, Mr. Vilardo and Ms. Avery, to name a few.
8 Almond v. United States District Ct., 852 F. Supp. 78, 80 (1994) (emphasis added).
9 "Lawyer's Subpoena in Probe is Called Unusual", National Law Journal, Feb 5. 1996, p. A12 (emphasis added).

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MOREIRA, T. F. M; SANTOS, A. R; SILVA, T. B. V; OLIVEIRA, A; GONÇALVES, O. H; LEIMANN, F. V; "PROPRIEDADES MICROESTRUTURAIS E ANTIBACTERIANAS DE HIDROGÉIS DE GELATINA CONTENDO ÁCIDOS LÁTICO E ACÉTICO", p. 650-653 . In: . São Paulo: Blucher, 2018.
BOONKAEW B, SUWANPREUKSA P, CUTTLE L, BARBER PM, SUPAPHOL P, Hydrogels containing silver nanoparticles for burn wounds show antimicrobial activity without cytoxicity. J. Appl. Polym. Sci., v. 40215, p. 1-10, 2014. DRAGAN ES, Design and applications of interpenetrating polymer network hydrogels. A review. Chem. Eng. J, v. 243, p. 572-590, 2014. KING EJ, The ionization constants of glycine and the effect of sodium chloride upon its second ionization. J. Amer. Chem. Soc., v. 1, n. 73, p. 155-159, 1951. SIMONI RC, LEMES GF, FIALHO S., GONÇALVES OH, GOZZO AM, CHIARADIA V, SAYER C, SHIRAI MA, LEIMANN FV, Effect of drying method on mechanical, thermal and water absoption properties of enzymatically crosslinked gelatin hydrogels. An. Acad. Bras. Cienc., v. 89, n. 2, p. 1-11, 2017. ULLAH F, BISYRUL M, JAVED F, AKIL H, Classification, processing and application of hydrogels: A review, Mat. Scien. and Eng. C, v. 57, p. 414-433, 2015.

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По данным об изотопном составе ледяных кернов, полученных из скважин, пробуренных в индоокеанском секторе Восточной Антарктиды между трассами Мирный – Восток и Прогресс – Восток, восстановлено изменение температуры воздуха и скорости снегонакопления за последние 350 лет. Проанализирована связь временнóй изменчивости изотопного состава осадков с местной приземной температурой воздуха и температурой в источнике влаги. Обнаружено проявление малого ледникового периода, а также так называемого климатического сдвига 1970‑х годов в исследуемом секторе Антарктиды. Обсуждается роль неклиматических факторов, влияющих на формирование долгопериодных трендов в рядах изотопного состава осадков, получаемых по ледяным кернам.
1. Владимирова Д.О., Екайкин А.А. Климатическая изменчивость в секторе моря Дейвиса (Восточная Антарктида) за последние 250 лет по данным геохимических исследований ледяного керна из скважины 105 км // Проблемы Арктики и Антарктики. 2014. Вып. 1 (99). C. 102–113.
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Attorneys representing whistleblowers and the government are increasingly turning to statistical sampling for evidence of both liability and damages in False Claims Act cases. The decision to sample rather than directly review every claim is often driven by necessity when the allegedly false claims are too voluminous to permit individual analysis.
Using a statistical sample as evidence involves having an expert take a large body of evidence (like 50,000 allegedly false claims), and draw a much smaller, random, representative sample of several hundred claims that is then practical to review individually for falsity. The result of this review is then extrapolated to the unreviewed claims: for example if 150 of 300 sample claims are determined to be false, then it can be determined with a reasonable degree of certainty that 25,000 of 50,000 total claims are false, with a margin of error around 5%.
Whether statistical sampling can be used to prove both liability and damages is a particularly important question in False Claims Act cases involving healthcare fraud. As the United States Supreme Court recently recognized in Tyson Foods, Inc. v. Bouaphakea, 136 S. Ct. 1036, 194 L. Ed. 2d 124 (2016): “In many cases, a representative sample is ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability.” 1 Healthcare False Claims Act cases often involve tens of thousands of individual claims, and the time and expense of reviewing each claim individually can rapidly outstrip the damages at issue.
Tyson resolved any remaining doubt about whether statistical samples may be used to address voluminous records that cannot realistically be presented claim-by-claim. Lower courts weighing the reliability of statistical samples offered in False Claims Act cases to prove liability and/or damages, however, come out on both sides of this fact-specific question. Cases on both sides of this question are collected in U.S. ex rel. Michaels v. Agape Senior Cmty., Inc., No. CA 0:12-3466-JFA, 2015 WL 3903675, at *7 (D.S.C. June 25, 2015), order corrected, No. CA 0:12-3466-JFA, 2015 WL 4128919 (D.S.C. July 6, 2015), and aff’d in part, appeal dismissed in part sub nom. United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330 (4th Cir. 2017).
United States ex rel. Crews v. NCS Healthcare of Illinois, Inc., 460 F.3d 853, 857 (7th Cir.2006) (rejecting relator’s attempt to establish FCA liability based upon percentages rather than proof of actual false claims); United States ex rel. El–Amin v. George Washington Univ., 533 F.Supp.2d 12, 31 n. 9 (D.D.C.2008) (requiring the relators to set forth specific evidence for each individual claim); United States ex rel. Hockett v. Columbia/HCA Healthcare Corp., 498 F.Supp.2d 25, 66 (D.D.C.2007) (court held that it is “imperative for [R]elator[s] to produce real evidence to support [their] contention [s]….”); United States v. Medco Physicians Unlimited, No. 98–C–1622, 2000 U.S. Dist. LEXIS 5843, at *23 (N.D.Ill. Mar. 15, 2000) (declining to allow statistical sampling and explaining that the parties provided “no case law or other authority to support such a request”); United States ex rel. Trim v. McKean, 31 F.Supp.2d 1308, 1314 (W.D.Okla.1998) (declining to allow a statistical sample “to find a percentage of false claims from all claims submitted by [defendant] ….”).
United States v. Rogan, 517 F.3d 449, 453 (7th Cir.2008) (appellate court rejected the argument that the district court had to address each of the 1,812 claims at issue and held that “[s]tatistical analysis should suffice;” however, all 1,812 claims were objectively false); United States ex rel. Ruckh v. Genoa Healthcare, LLC, No. 8:11–CV–1303–T–23TBM, 2015 WL 1926417, at *3 (M.D.Fla. Apr.28, 2015) (district court expressed an inclination to allowing statistical sampling and extrapolation by rejecting Friedmanand explaining that Friedman does not stand for the proposition that statistical sampling cannot be used in large-scale qui tam cases); United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., Nos. 1:08–cv–251, 1:12–cv–64, 2014 U.S. Dist. LEXIS 142660, 2014 WL 4816006 (E.D.Tenn. Sept. 29, 2014) (same); United States v. Fadul, No. CIV.A.DKA 11–0385, 2013 WL 781614, at *2 (D.Md., Feb., 28, 2013) (finding the extrapolation method acceptable for Medicare and Medicaid claims under common law theory of payment by mistake); United States v. Chen, No. 2:04–cv–00859, 2009 WL 1683142 (D.Nev.2009) (jury found physician liable under the FCA for submitting 3,544 false claims, but parties only analyzed 37 claims at trial after the physician conceded that the referral request and services provided were the same for each of these claims); United States ex rel. Loughren v. UnumProvident Corp., 604 F.Supp.2d 259, 263 (D.Mass.2009) (extrapolation is a reasonable method for determining the number of false claims so long as the statistical methodology is appropriate); United States ex rel. Barron v. Deloitte & Touche, LLP, Civil No. SA–99–CA–1093–FB, 2008 WL 7136869, *2 (W.D.Tex. Sept.26, 2008) (in a Daubert hearing, the court excluded the statistician’s testimony, but recognized the relevance of statistical evidence); United States ex rel. Doe v. DeGregorio, 510 F.Supp.2d 877, 890 (M.D.Fla.2007) (court relied on an extrapolated overpayment figure derived from a prior Government audit when calculating the pre-judgment remedy figure in the subsequent FCA action); United States v. Cabrera–Diaz, 106 F.Supp.2d 234, 242 (D.P.R.2000) (court entered default judgment against defendants for treble the damages sustained based off the estimated overpayments that a prior Government audit revealed); United States v. Krizek, 859 F.Supp. 5, 7 (D.D.C.1994) supplemented, 909 F.Supp. 32 (D.D.C.1995) aff’d in part and remanded, 111 F.3d 934 (D.C.Cir.1997) (physician agreed upon sampling process to prove liability of the 8,002 potentially false claims, appellate court agreed that physician consented to sampling).
Michaels, 2015 WL 3903675 at *7.
Parts two and three of this post discuss two important recent District Court opinions that came out on either side of permitting the use of a statistical sample to prove liability and damages in False Claims Act cases.
The second Part of this three-part blog post discusses a leading False Claims Act case that accepted a statistical sample as evidence of both liability and damages. For more information, or to discuss a potential case with us, please contact us.

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Currently under the Stark law, the physician recruitment exception (42 C.F.R. § 411.357(e)) permits hospitals, Federally Qualified Health Centers (FQHCs) and Rural Health Clinics (RHCs) to provide remuneration to physicians and/or group practices to assist with recruitment and/or retention of physicians into the geographic area served by the hospital, FQHC, or RHC, in order to be a member of the medical staff. The current exception as drafted is applicable to physicians only. In fact, in Stark II, Phase III, CMS expressly declined to expand 42 C.F.R. § 411.357(e) to cover the recruitment of non-physician practitioners (NPPs) into a hospital's geographic service area. In that rulemaking, CMS distinguished between payments made directly to the NPP, which would not implicate the Stark law and payments made to a physician practice for the recruitment of the NPP, which would implicate the statute and for which no exception would apply.
CMS has since recognized that there have been significant changes in health care delivery and payment systems, including primary care workforce shortages. In light of this shortage, CMS has proposed a new exception at 42 C.F.R. § 411.357(x) to permit recruitment assistance and retention payments from hospitals, FQHCs, and RHCs to an individual physician to assist the physician in employing NPPs in the geographical area served by the hospital, FQHC, or RHC providing the remuneration. The proposed exception would also protect deemed "direct" compensation arrangements between a hospital, FQHC, or RHC and the physicians standing in the shoes of the physician organization (including a physician's group practice) to which the hospital, FQHC, or RHC provided the remuneration.
The NPP must be a bona fide employee of the physician (or physician's group practice when the physician is deemed to stand in the shoes of his or her group practice).
The purpose of the NPP's employment is to provide primary care services (i.e., general family practice, general internal medicine, pediatrics, geriatrics, and OB/GYN services).
NPPs are defined to include: physician assistants, nurse practitioners, clinical nurse specialists, and certified nurse midwives. Certified registered nurse anesthetists are not included.
CMS proposed two alternatives for establishing the minimum amount of primary care services the NPP must furnish to patients of the physician's practice.
NPP must furnish substantially all primary care services.
Total Remuneration: CMS proposes to cap the remuneration at the lower of 50 percent of the actual salary, signing bonus, and benefits paid to the NPP or an amount calculated by taking the receipts of services provided by the NPP and subtracting the actual salary, signing bonus and benefits paid to the NPP.
Duration of Assistance: The hospital, FQHC, or RHC may not provide assistance for a period longer than the first two consecutive years of the NPP's employment by the physician.
To protect against gaming of the system and rotating NPPs through multiple physician practices, CMS proposed that for the three years prior to being employed by the physician, the NPP must not have practiced in the geographical area served by the hospital, FQHC, or RHC or have been employed by or otherwise engaged by a physician's medical practice located in the geographic area served by the hospital, FQHC, or RHC.
CMS proposed to define a referral by an NPP to include a request by an NPP that includes the provision of designated health services (DHS) payable under Medicare, establishment of a plan of care by the NPP that includes the provision of DHS, or the certifying or recertifying the need for DHS. The proposed definition would not include DHS personally performed by the NPP.
CMS proposed that documentation of the remuneration provided under this exception must be maintained for a period of six years.
CMS proposed that the physician may not impose practice restrictions on the NPP that would unreasonably limit the ability of the NPP to practice in the geographical area served by the hospital, FQHC, or RHC.
Other requirements to safeguard against program or patient abuse are similar to the requirements found in the other Stark exceptions in 42 C.F.R. § 411.357, such as the arrangement must be signed in writing (including signatures of the hospital, physician, and NPP), must represent fair market value, and may not be conditioned on the physician's or the NPP's referrals to the hospital.
CMS is seeking comments on the proposed limitations. Specifically, CMS is seeking comments on whether the exception should be expanded to include more services than only primary care services and more types of practitioners beyond those listed in the proposed rule; whether the exception should apply to the recruitment of independent NPPs; whether there should be a limit to the number of times a hospital, FQHC, or RHC may assist the same physician with the employment of an NPP; the effectiveness and impact of the cap; and whether the exception should include additional safeguards.
The physician recruitment exception at 42 C.F.R. § 411.357(e) permits a hospital, FQHC, and RHC to provide remuneration to a physician to induce the physician to relocate his or her medical practice to the geographic area served by the hospital, FQHC, or RHC in order to become a member its medical staff. CMS intended for the definition of geographic area served by the hospital at 42 C.F.R. § 411.357(e)(2)(i) & (iii) to apply to the recruitment of physicians by FQHCs and RHCS in the same manner as the definitions apply to hospitals. The current definition of geographic area served by the hospital is contingent on the volume of the hospital's inpatients. However, FQHCs and RHCs provide primary care services in rural or underserved areas and thus have no inpatients. CMS recognized that the current definition does not provide any guidance to FQHCs and RHCs as to the geographic area into which such an entity may recruit a physician. Therefore, CMS is proposing to revise 42 C.F.R. § 411.357(e)(6) to add a new definition of the geographic area served by a FQHC or RHC in order to appropriately capture the areas where their patients actually reside.
[T]he geographic area served by a FQHC or RHC is the area composed of the lowest number of contiguous zip codes from which the FQHC or RHC draws at least 90 percent of its patients, as determined on an encounter basis. If the FQHC or RHC draws fewer than 90 percent of its patients from all of the contiguous zip codes from which it draws patients, the geographic area served by the FQHC or RHC may include noncontiguous zip codes, beginning with the noncontiguous zip code in which the highest percentage of its patients reside, and continuing to add noncontiguous zip codes in decreasing order of percentage of patients. The geographic area served by the FQHC or RHC may include one or more zip codes from which it draws no patients, provided that such zip codes are entirely surrounded by zip codes in the geographic area from which it draws at least 90 percent of its patients.
[T]he geographic area served by a FQHC or RHC [is] the area composed of the lowest number of contiguous or noncontiguous zip codes from which the FQHC or RHC draws at least 90 percent of its patients, as determined on an encounter basis. This would be determined by beginning with the zip code in which the highest percentage of the FQHC's or RHC's patients reside, and continuing to add zip codes in decreasing order of percentage of patients.
CMS is seeking comments about the alternative definitions and whether patient encounters is the appropriate measure for determining the geographic area served by an FQHC or RHC. CMS is also seeking comments regarding the barriers FQHCs and RHCs face when recruiting physicians in light of the physician recruitment exception, 42 C.F.R. § 411.357(e).
In Stark II, Phase II, CMS created the retention payments in underserved areas exception at 42 C.F.R. § 411.357(t) to permit a hospital (or FQHC or RHC) to provide a retention payment to a physician whose practice is located in an underserved area. The exception covers retention payments made by a physician who has a bona fide firm, written recruitment offer that would move his or her practice at least 25 miles and outside of the geographic area served by the hospital (or FQHC or RHC) making the retention payment.
not exceed the lower of the following: (1) an amount equal to 25 percent of the physician's current annual income (averaged over the previous 24 months) using a reasonable and consistent methodology that is calculated uniformly; or (2) the reasonable costs the hospital would otherwise have to expend to recruit a new physician to the geographic area served by the hospital in order to join the medical staff of the hospital to replace the retained physician. (72 Fed. Reg. 51066). (emphasis added).
However, 42 C.F.R. § 411.357(t)(2)(iv) currently states that the retention payment may not exceed the lower of "[a]n amount equal to 25 percent of the physician's current income (measured over no more than a 24-month period), using a reasonable and consistent methodology that is calculated uniformly…" (emphasis added).
In the proposed rule, CMS stated that the current regulation appears to permit a hospital (or FQHC or RHC) to make a retention payment that is considered only part of the prior 24-month period instead of the entire period. CMS is proposing to modify the text in 42 C.F.R. § 411.357(t)(2)(iv) to reflect the language in Stark II, Phase III, or "averaged over the previous 24 months."