Over the course of a business dispute between competitors, the Special Master recommended that various sanctions be imposed against the defendant and its counsel.  While declining to impose sanctions during the lawsuit, the District Court was asked to reconsider the issue after trial. At that time, the Court reviewed and record and concluded that “Stryker failed to meet some of its preservation obligations, and that Stryker’s counsel turned this case sour with nasty litigation tactics. As I stated during the trial, I was appalled at Stryker’s lawyers’ playing fast and loose with discovery obligations. I agree with the Special Master that Stryker’s failure to preserve text messages in December 2019 was either willful misconduct or gross negligence. That action may have become water under the bridge with the recovery of most text messages. But Stryker’s counsel’s November 1 representation that ‘all texts between the Sales Reps and Mr. Jacobs and/or Mr. Bonessi during the alleged spoliation period are being produced today’ was simply untrue. Even if Stryker had produced key images and attachments (which it had not), Mason Miller’s text messages were not produced until February 11, 2022. Stryker could have said it was producing ‘all available text messages’ or was working with plaintiffs’ IT people to sort through technical difficulties, but it chose to use unequivocal language on which the Court relied. Moreover, I find the Special Master’s observation about Stryker’s counsel’s coaching and failing to prepare 30(b)(6) witnesses properly, abusively defending Ms. Shackelford’s deposition, and delaying discovery to be credible. I reviewed a video of a portion of the Shackelford deposition, and I agree that defense counsel’s conduct was rude, unprofessional, and inappropriate.

“This conduct by lawyers of a respected Chicago-based law firm convinces me that sanctions are appropriate but, like the Special Master, I struggle to find the appropriate ones. The Special Master believed – as I do – that the sanctions should have teeth. That is why he recommended presuming a pivotal fact at trial. He recognized that this would have been a severe sanction but said that he could not think of a lesser but sufficient sanction. Obligating Stryker to reimburse two thirds of ORP’s Special Master costs is insufficient – the Special Master considered this a minor sanction. Requiring Stryker to reimburse plaintiffs’ attorneys fees is insufficient – the contract already requires such reimbursement (were that not the case, I would likely have ordered defendant to reimburse plaintiffs for the attorney’s fees and costs plaintiff incurred during the discovery process). Plaintiffs suggested that a Colorado state court judge in El Paso County had trebled attorney’s fees in a similar situation. That has some teeth, for sure, but it strikes me as excessive in the context that defendant is already required to pay plaintiffs’ attorney’s fees.”

Hence: “The Court orders defendant and its counsel to reimburse plaintiff for the full amount of plaintiffs’ share of the Special Master’s fees and costs. Half of this reimbursement should be paid by Stryker for its failure to preserve text messages, and the other half should be paid by the Seyfarth Shaw law firm for the misconduct of counsel during the discovery process. The Court also admonishes counsel. This was a large, important case for both parties. The parties were entitled to zealous advocacy from their outside counsel and from their inside corporate attorneys. However, zealous advocacy does not justify abusive conduct or hiding the ball.”


ORP Surgical v. Howmedica Osteonics Corp., No.20-1450, 2022 WL 1468115 (D.Colo. May 10, 2022).