Case 1:05-cv-04453 Document 296 Filed 08/18/2008 Page 1 of…

    Case 1:05-cv-04453   Document 296   Filed 08/18/2008   Page 1 of 23



               IN THE UNITED STATES DISTRICT COURT
              FOR THE NORTHERN DISTRICT OF ILLINOIS
                         EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.   )
RHONDA SALMERON, Relator,          )
                                   )
                    Plaintiff,     )
                                   )
     v.                            )         No.   05 C 4453
                                   )
ENTERPRISE RECOVERY SYSTEMS, INC., )
et al.,                            )
                                   )
                    Defendants.    )

                    MEMORANDUM OPINION AND ORDER

     This matter is before this Court for decision in response to

the motions to dismiss with prejudice that have been advanced by

all defendants and on which all parties have had their say.               This

Court of course recognizes the seriousness of imposing that

ultimate sanction because of a litigant's or lawyer's conduct

rather than deciding a case on the merits (a subject discussed

later in the Conclusion of Law section), so that this memorandum

opinion and order will begin with a brief recital of the

background leading to that conclusion, followed by a more

detailed recital of the facts and then by the conclusion itself.

For the reasons set forth below, the several motions are granted

and this case is dismissed in its entirety.

                          Background Summary

     This action has been pending for over three years.

Throughout the course of this litigation, counsel Jorge Sanchez

("Sanchez") for relator Rhonda Salmeron ("Salmeron") has engaged
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in a virtually unbroken pattern of dilatory and irresponsible

conduct that has regularly included missed deadlines, repeated

requests for extensions of time, failure to comply with this

Court's orders and procedures and failure to attend status

conferences.   Indeed, this Court took the unusual step of

dismissing this case sua sponte for want of prosecution in May

2008, although it then--as it had forecast it would probably

do--reinstated the case on Sanchez' claimed explanation as to his

past delinquencies and his assurance of future compliance.1

     After this Court had thus granted Salmeron's motion to

reopen the case, Salmeron--through counsel Sanchez--did not

comply with the promise to toe the line going forward.           In

addition to some further noncompliance with procedural

requirements, which although troublesome might not have called

for any severe response, counsel Sanchez committed a far more

serious breach:   He deliberately disclosed confidential and

highly sensitive contractual documents that he had obtained

through discovery on a limited disclosure basis.           Sanchez has



     1
        It should be made plain that the May 2008 order was not
entered with any notion that it would be a death sentence for
this lawsuit, as to which the teaching of such cases as Gabriel
v. Hamlin, 514 F.3d 734, 736-37 (7th Cir. 2008) is that only
egregious delays by litigants can justify such an action. To the
contrary, its sole purpose was to bring forcefully to the
attention of Sanchez, as Salmeron's counsel, the need to break
his pattern of inattention to his obligations--else this Court
would not have, as it did, invited a motion to rescind that
order.

                                   2
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admitted providing those confidential documents to a reporter for

the Chronicle of Higher Education, to an unidentified potential

co-counsel and to Salmeron herself.      Sanchez and Salmeron also

cannot explain how the documents came to be posted (numbered with

the Bates number stamps, an identifier that unequivocally

confirms their origin as copies of the documents physically

delivered to Sanchez and Sanchez alone) on Wikileaks, a worldwide

website devoted (as the name implies) to the leaking of

confidential documents.

     In sum, the unprofessional and irresponsible conduct of

Salmeron's counsel Sanchez leaves this Court no considered choice

but to dismiss this case with prejudice so as to protect the

integrity of the judicial system.       What follows next is the more

extended statement of reasons for that conclusion and result.

                           Findings of Fact

     1.   Salmeron filed this action on August 4, 2005 pursuant to

the False Claims Act, 31 U.S.C. §3730(b)(1).         Within the first

six months after filing the case, Salmeron's counsel Sanchez

began to exhibit a pattern of behavior that involved repeated

delays and repeated noncompliance with this Court's orders.

     2.   On February 3, 20062 original defendant Enterprise

Recovery System ("Enterprise") filed a motion to dismiss pursuant


     2
        All other dates through Finding 7 were also during 2006,
so any further year references will be omitted from those next
Findings.

                                   3
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to Fed. R. Civ. P. ("Rule") 9(b) and 12(b)(6)(Dkt. 24).                This

Court ordered that responses be filed by March 2 (Dkt. 28), with

a status date set for March 6 to see whether a reply was called

for.3       Just after the March 2 due date (on March 3) Sanchez filed

a motion to file the response instanter, to be presented at the

March 6 hearing (Dkt. 34).         Sanchez cited his workload and

personal issues as the reasons for the brief delay (Dkt. 33-1).4

        3.    On June 6 Enterprise filed a motion for a protective

order (Dkt. 59, 64).         Sanchez filed a memorandum opposing the

proposed protective order, adding that he was "at a loss to even

assess whether the defendant's proposed order was made in good

faith...."       Nonetheless Sanchez told this Court (Dkt. 66):

        For the time being plaintiff agrees not to disclose the
        documents to any third parties (except for the U.S.
        Attorney), or file any documents publicly until:
        1) defendant has had an opportunity to propose docu-
        ments to be designated as confidential; 2) plaintiff


        3
        In the past few years this Court has departed from its
once-near-automatic setting of a 1-2-3 briefing schedule to a
practice of ordering a responsive memorandum followed by an early
status hearing. Experience has taught that litigants often meet
head-on in the initial memorandum and response, thus obviating
the need for a movant to expend time (and the client's money) in
the preparation and filing of a reply.
        4
        As will be seen, these Findings refer to Sanchez
throughout, although his co-counsel John Moran ("Moran") has also
appeared in court--infrequently--from time to time. This Court
has not troubled itself to listen to the tape recordings of the
many hearing dates referred to in these Findings to see if any of
those dates involved Moran's presence and Sanchez' absence--but
there is not the slightest question that virtually all (if not
all) of the appearances that involved claimed explanations of and
excuses for delayed filings were by Sanchez.

                                       4
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     has had a chance to agree or dispute such proposed
     designations; and 3) this Court has had the opportunity
     to rule on any disagreement brought before it.

On June 14 this Court granted Enterprise's motion for a

protective order "on a counsel's eyes only basis with a formal

written order to be submitted" (Dkt. 68).

     4.   Next, on July 28 Enterprise filed its Second Amended

Motion for Entry of a Protective Order (Dkt. 74).          On August 2

this Court granted the motion but directed counsel for the

parties to revise the order (Dkt. 75).       Then on August 3

Enterprise and Salmeron submitted the revised protective order,

which this Court signed and entered (Dkt. 77).

     5.   On October 16 added defendant United States Aid Funds,

Inc. ("USA Funds") filed a motion to dismiss the First Amended

Complaint (Dkt. 96).     This Court ordered Salmeron to file her

response to the motion by November 17 (Dkt. 100), again setting a

status date shortly thereafter to consider whether to schedule a

reply.

     6.   On November 13 counsel for Salmeron and for USA Funds

held their initial discovery planning conference, with USA Funds

represented by its former counsel Mark Sweet ("Sweet") of Wiley

Rein, LLP (then known as Wiley Rein & Fielding, LLP).           Sweet

participated by telephone and told Sanchez that to protect USA

Funds' documents, it would want the same undertakings and

assurances that were afforded by the protective order in place


                                   5
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between Enterprise and Salmeron.        In response Sanchez agreed

during that conference to treat certain documents identified by

USA Funds as being for "attorneys' eyes only" until such time as

a modified protective order could be entered.

     7.   On November 20 (once again after the due date had

passed) Sanchez filed a motion to file Salmeron's response to USA

Funds' motion to dismiss instanter, to be presented at the

November 27 status hearing date (Dkt. 109).         To complete the

parallel to Finding 2, Sanchez again cited his workload and

family obligations as the reasons for the delay.

     8.   On January 31, 20075 USA Funds made its first production

of documents, which included the Third Amended and Restated

Guarantee Services Agreement between USA Funds and Sallie Mae,

Bates-labeled USAF00000001-USAF00000060.        In the cover letter

accompanying that production, Sweet specifically stated that

there were certain documents for which USA Funds would be seeking

confidential treatment, expressly including the Guarantee

Services Agreement between USA Funds and Sallie Mae.            Sweet went

on to say that he had circulated a draft joint motion for entry

of a modified protective order and that USA Funds would "move for

confidential treatment of these documents when that order has

been entered."


     5
        Because all other dates through Finding 15 were also
during 2007, once again no year references will be repeated in
those next Findings.

                                   6
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     9.    Sanchez had informed USA Funds' counsel that he wanted

to make some additional modifications to the protective order so

that it would cover documents from Salmeron's home computer.              On

February 1 Sanchez e-mailed Sweet, explaining that he had not yet

had an opportunity to review the proposed modification (in part

because of his workload), but that he would do so and that he was

"sure we can get this worked out to the parties' and Court's

satisfaction."

     10.   Salmeron's responses to USA Funds' interrogatories and

its request for production of documents were due on February 19,

but USA Funds received no such responses.        Nonetheless, on

March 2 USA Funds made its second production of documents.            In

the cover letter accompanying that production, Sweet reiterated

that USA Funds "remains interested in seeking confidential

treatment" for the Guarantee Services Agreement between USA Funds

and Sallie Mae.    Sweet again asked Sanchez to provide edits to

the draft motion for entry of a modified protective order he had

circulated in January, and he again stated that USA Funds would

move for confidential treatment once the order had been entered.

Sweet also inquired about the status of Salmeron's overdue

responses to interrogatories and discovery requests.

     11.   On March 23 this Court held a previously-scheduled

status conference, but Sanchez failed to appear.           Nor did Sanchez

submit the delinquent responses to the interrogatories until


                                   7
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April 30, more than two months after they were due.

     12.   On May 18 Enterprise filed a motion to compel and for

sanctions (Dkt. 145) because Salmeron had also failed to respond

to Enterprise's interrogatories and requests for production,

which had become due on or about April 9.        Although Sanchez had

previously represented that the information would be provided

before May 11, he had failed to provide any of the items.            This

Court granted Enterprise's motion to compel in part but denied

its request for sanctions.     It ordered Salmeron to comply with

the motion to compel by May 29 (Dkt. 147).

     13.   On October 22 this Court ordered Salmeron to file a

response to Enterprise's motion to dismiss the Second Amended

Complaint on or before November 5 (Dkt. 168).         Salmeron filed

neither the ordered response nor a request for extension, waiting

instead until November 14 to file a motion for leave to file a

Third Amended Complaint ("TAC")(Dkt. 170).        This Court promptly

ordered Sanchez to provide a copy of the proposed TAC to defense

counsel to determine if there were any objections, scheduling a

status conference for November 26 (Dkt. 171).

     14.   At that status hearing this Court granted leave to file

the TAC (Dkt. 172), instructing that Enterprise's motion to

dismiss the Second Amended Complaint would apply to the TAC and

ordering Salmeron to file a response to the motion on or before

December 10.   As it had done with the other timetables, this


                                   8
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Court scheduled a status hearing for December 17 (Dkt. 172).

       15.    In accordance with his consistent pattern, Sanchez did

not file either the required response or a motion for an

extension on or before December 10.          And true to form, on

December 17 Sanchez filed a motion for leave to file a response

instanter, once more citing his workload as the reason for the

delay.       This time Sanchez provided a copy of his motion to

opposing counsel and this Court only minutes before the scheduled

status hearing.       At the conclusion of the hearing this Court

ordered Sanchez to file the TAC by December 26 (Dkt. 180).

       16.    On December 20 Sanchez filed a motion for an extension

of the December 26 deadline to January 4, 20086 for filing the

TAC.       Unsurprisingly Sanchez cited his workload, family

obligations and the Christmas holiday as the reasons that an

extension was needed (Dkt. 177).           This Court granted the motion

and rescheduled the status hearing to January 29 (Dkt. 182).

       17.    Despite this Court's having granted the requested

extension, Sanchez again submitted nothing--neither the TAC nor a

motion for an extension--by the January 4 deadline.               During

January this Court's minute clerk consequently called Sanchez to

inquire about the status of the filing and was told that the

filing was forthcoming.        But Sanchez neither attended the


       6
        With the most limited exceptions, all other dates through
the remaining Findings were also during this year, so that
further year references to those 2008 dates will be omitted.

                                      9
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January 29 status hearing nor filed the TAC before that hearing.

This Court ordered Salmeron to file the TAC by February 5,

warning that the pending motions to dismiss would be granted if

that deadline was not met (Dkt. 183).

     18.   Mirabile dictu, Sanchez did file the TAC on February 5,

adding as defendants Sallie Mae, Inc., USA Group Guarantee

Services, Inc., USA Servicing Corp. and Sallie Mae Servicing,

L.P. (Dkt. 185).    That pleading alleged (1) that USA Servicing

Corp. was the successor in interest to USA Group Guarantee

Services, Inc. (TAC ¶37), (2) that Sallie Mae Servicing, L.P. was

in turn the successor in interest to USA Group Guarantee

Services, Inc. (id. ¶38) and (3) that Sallie Mae Servicing, L.P.

had been dissolved, with Sallie Mae, Inc. being the successor in

interest to all three of those entities (id. ¶39).           Sallie Mae,

Inc. (hereafter simply "Sallie Mae") does not contest the

allegation that it is the successor in interest to those three

now nonexistent entities.

     19.   On March 7 defendants Enterprise, Scott Nicholson and

USA Funds moved to dismiss the TAC (Dkt. 192-204), and USA Funds

also sought summary judgment.      This Court entered a scheduling

order that required Salmeron's responses to be filed by April 11

and scheduled a status hearing for April 16 (Dkt. 206).

     20.   On April 9 Sanchez filed still another motion for an

extension (Dkt. 207)--once again his workload and other


                                   10
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obligations were cited as reasons for the delay.             This Court once

more granted the extension, establishing a new deadline of

April 18 for the responses and continuing the status hearing

until April 22 (Dkt. 209).

     21.    This Court should have known better:           Sanchez failed

either to file the responses or to seek an extension on or before

April 18, and on April 21 this Court entered a sua sponte order

rescheduling the April 22 status hearing to May 9 (Dkt. 219).

Then on May 1, despite the expiration of the April 18 deadline,

Sanchez filed still another motion to extend the filing date for

the responses until May 6 (Dkt. 220).       That motion too cited

Sanchez' workload as one of the reasons for the missed deadline,

but it also added his concern over filing the responses before

Sallie Mae filed its anticipated motion to dismiss on May 5.

This Court granted the requested extension to May 6 (Dkt. 223).

     22.    Plus ça change, plus c'est la même chose:           Sanchez

again failed to comply with this Court's order referred to in

Finding 21 and did not file the responses before the new

deadline.    Meanwhile, on May 5 Sallie Mae did file its motion to

dismiss the TAC (Dkt. 224).     In its motion Sallie Mae advised

this Court that it was in discussions with Sanchez for the

voluntary dismissal of the three nonexistent entities (see

Finding 18) and that if a resolution could not be reached, a

motion would be filed on their behalf to adopt Sallie Mae's


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motion to dismiss.

     23.    On May 8 Sanchez communicated with this Court's

chambers and requested a continuance of the May 9 status hearing,

saying that the continuance was needed so that the delinquent

responses could be filed before the hearing--specifically by the

afternoon of May 9.      This Court rescheduled the status hearing to

May 16 (Dkt. 228).

     24.    May 9 came and went without the promised responses or

even another request for an extension.       In candor, the depressing

recital to this point leaves this Court astonished that it did

not call a halt earlier, but on May 14 it entered an order

dismissing this action for want of prosecution, even then making

it clear that it would entertain a promptly-filed motion to

reopen the case under Rule 59(e) (Dkt. 231).7         On May 15 (perhaps

the first time that he acted expeditiously) Sanchez filed a

motion to alter the judgment and reopen the case (Dkt. 233).

         25.   On May 21 this Court heard argument on Sanchez'

motion to reopen Salmeron's case.       Although this Court granted

the motion, it did so with substantial misgivings, granting

Enterprise's motion for sanctions, emphasizing that this was

Sanchez' final warning and expressing its discontent with

Sanchez' "extensive pattern of noncompliance" (May 21 Tr. 8:10 to


     7
        This is somewhat reminiscent of the old saw that the best
way to get the proverbial mule's attention is to strike it
between the eyes with a two-by-four (see n.1).

                                   12
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8:17).     Even so, Sanchez has still not paid those sanctions to

date.

     26.    On June 16 Sanchez filed a motion to compel against

Enterprise (Dkt. 243), but did so without first attempting to

conduct a meet-and-confer conference as required by Rule

37(a)(1), LR 37.2 and this Court's Case Management Procedures.

This Court ultimately denied that motion, based in part on

Sanchez' failure to comply with those rules and procedures, and

it entered and continued Enterprise's motion for sanctions

(Dkt. 266).

     27.    On June 24 USA Funds, Sallie Mae and Enterprise learned

that on June 20 a scanned copy of the USA Funds-Sallie Mae Third

Amended and Restated Guarantee Services Agreement had been posted

on a website known as Wikileaks.org ("Wikileaks").           Wikileaks

touts itself as "an uncensorable version of Wikipedia for

untraceable mass document leaking and analysis"

(http://wikileaks.org/wiki/ Wikileaks:About).         Along with the

document itself, the leaker provided a purported summary of the

document and posed 13 inflammatory questions about the possible

"criminality" of the arrangement.

     28.    Just two days later (on June 26) the Chronicle of

Higher Education ("Chronicle") published an online article

captioned "Contract Raises New Concern over Sallie Mae's Ties to

Guarantor" about the leaked contract.       That article raised


                                   13
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questions about the Guarantee Services Agreement and stated

(emphasis added):

     A copy of the 51-page contract between Sallie Mae and
     USA Funds, along with some more recent letters updating
     its terms, was posted Friday to the Internet by
     Wikileaks, a Web site that specializes in publishing
     documents provided by anonymous whistle-blowers. The
     Chronicle had obtained the same document several days
     earlier and had no involvement in providing the
     materials to Wikileaks.

On July 2 and July 3 the Chronicle published two additional

articles regarding the leaked contract.

     29.   Importantly, the Agreement both leaked to Wikileaks and

provided to the Chronicle bears the Bates labels USAF00000001-

USAF00000060.   That conclusively establishes that document's

source as the selfsame document that USA Funds had provided to

Sanchez in keeping with its discovery obligations.           And on at

least three occasions USA Funds had identified the document as

being confidential and advised Sanchez that it intended to seek

confidential treatment for the document as soon as a modified

protective order had been entered.

     30.   Under the terms of the agreement that had been reached

at the November 13, 2006 initial discovery planning conference,

Sanchez was obligated to treat that document as being for

"attorneys' eyes only" until such time as a modified protective

order could be entered.     Such a restriction is of course based on

the assumption (unfortunately mistaken in this instance) that

counsel may be relied on to maintain the integrity of required

                                   14
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confidentiality, while even the client (to say nothing of third

persons) does not owe the same level of professional or other

obligations to the court.

     31.   On June 25 counsel for USA Funds communicated with

Sanchez as to the publication of the document on Wikileaks.                  In

an e-mailed response Sanchez did not deny releasing the document,

but rather attempted to justify his behavior.

     32.   On June 26 a copy of the Wikileaks article, as well as

the disclosed documents, also appeared as a link on the message

board of Yahoo Finance (http://messages.finance.yahoo.com/

Stocks_(A_to_Z)/Stocks_U/threadview?m=tm&bn=16717&tid=10906)

&mid=10906&tof=1&frt=2).     Yahoo Finance is a website that reports

and analyzes financial information, including information

regarding investing, various financial markets and company

finances (http://finance.yahoo.com/).

     33.   On July 1 USA Funds filed a motion in this action to

dismiss and for a protective order (Dkt. 246).             On the same day

Sallie Mae, Inc., USA Group Guarantee Services, Inc., USA

Servicing Corp. and Sallie Mae Servicing, L.P. filed their motion

to adopt USA Funds' motion (Dkt. 251), a motion that this Court

granted on July 21 (Dkt. 266).      Enterprise also joined USA Funds'

motion.

     34.   Sanchez has admitted that he released the document to a

reporter with the Chronicle, to an unnamed attorney and to


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Salmeron herself (Dkt. 257).      Sanchez offered several purported

but totally unconvincing excuses for that truly indefensible

behavior, including (1) his forgetfulness as to USA Funds'

repeated requests for a modification to the protective order,

(2) his not keeping the document with the cover letter that

specified that it was to be treated as confidential and (3) his

unwise judgment (Dkt. 257).

     35.   On July 3 this Court heard argument on the motions to

dismiss.   Sanchez' argument plainly evidenced his failure to

appreciate the seriousness of his actions, and this Court just as

plainly confirmed its dissatisfaction with his attempted

responses and advised him that it did not wish to hear any more

excuses.   Sanchez requested time to research what sanction short

of dismissal might be appropriate, and this Court ordered him to

do so by July 11.

     36.   Sanchez did file his Submission on Sanctions on July 11

(Dkt. 257).   There he acknowledged that the parties had agreed to

modify the original protective order to include all parties and

that he had wholly failed to comment on the proposed protective

order that had long since been submitted to him by USA Funds for

that purpose.   Despite those admissions, Sanchez once again

asserted at great length his workload and family obligations as

the primary reasons for the failure to honor his acknowledged

agreement not to disclose a confidential document.


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     37.   Although it is not yet known just how Wikileaks

obtained a copy of the specific confidential document that had

been delivered only to Sanchez, he has expressly admitted

delivering a photocopy to the Chronicle.        That conduct, like most

(if not all) of Sanchez' repeated violations of his

responsibilities to this Court and opposing counsel, must be

characterized as willful.     And with Sanchez having disclaimed the

Wikileaks transmittal even while acknowledging the delivery to

the Chronicle, this Court has no assurance that the Wikileaks

delivery may not be traceable back to Salmeron herself (an

unauthorized distributee in her own right).

     38.   Moreover, the unauthorized disclosures have publicized

to USA Funds' and Sallie Mae's competitors their trade secrets,

including but not limited to pricing, performance incentives, new

and enhanced product information, service level standards and the

scope of the services provided under the document.           In addition,

USA Funds and Sallie Mae have suffered significant negative

publicity by virtue of the articles resulting from the

unauthorized disclosures.

     39.   As to Enterprise, the unauthorized disclosures of the

document have coincided with its response to the Education

Department collection request for proposal.         Although the full

effect of that is unknown at this time, the appearance of the

article in the Chronicle may well cause further loss of business


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for Enterprise.

     40.   Nor is the damage referred to in the preceding Findings

(though both real and serious) either curable or quantifiable,

because the document was posted to a website that is devoted to

the publication of confidential information.         USA Funds' and

Sallie Mae's demands that the document be removed have been

ignored.   Indeed, even if Wikileaks were to remove the document,

the harm is done, for the information is in cyberspace and cannot

be pulled back.

     41.   On a collateral issue, during the July 31 status

hearing the counsel for Sallie Mae, Inc. and the three

nonexistent entities referred to in Finding 18 advised this Court

that he had been seeking the voluntary dismissal of those

entities for some time, but without success.         Sallie Mae's

counsel further advised this Court that Sallie Mae, Inc. was not

contesting that it is the successor in interest to the three

nonexistent entities.     At the hearing this Court admonished

Salmeron's counsel Sanchez to dismiss those entities, because

failure to do so with prejudice would effectively allow Salmeron

to circumvent this order as to Sallie Mae, Inc.

                           Conclusion of Law

     Sanchez'--and hence Salmeron's--persistent flouting of court

deadlines, coupled with periodic no-shows at scheduled status

dates, has both interfered with the due administration of justice


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and imposed added costs on the defendants.         In the latter

respect, recompense might perhaps take the form of a shifting of

fees, while in the former respect this Court might well have been

less patient and fired a shot across Salmeron's bow earlier than

its May 14, 2008 dismissal for want of prosecution, coupled as it

was with an invitation to seek the lawsuit's reinstatement and to

sin no more.8

     But it is unnecessary to decide whether Sanchez'

repeated--almost universal--violations that have been detailed in

the Findings of Fact would cumulatively rise (or fall) to the

level that would meet the caselaw standard for dismissal, because

the latest breach is an offense far greater in kind rather than

in degree.   It is truly inexcusable, no real explanation has been

offered, and its damaging effect cannot be quantified in the same

way that looking at defense counsel's time charges and compelling

Salmeron to pay them might provide a remedy for the earlier

procedural violations.

     Salmeron's just-filed Relator's Opposition to Proposed

Dismissal Order, after speaking of the stringent standard


     8
        Frankly, this Court had not focused on just how often and
how consistently Sanchez had not followed court orders until this
opinion gave it the occasion to review and recount those
violations. Needless to say, a substantial number of the
individual instances had produced a "What, again?" reaction on
this Court's part--but this is after all one of a couple hundred
civil and criminal cases on this Court's calendar, so that
keeping count of Sanchez' offenses would have been at odds with a
constructive budgeting of judicial time.

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applicable to any dismissal attributable to a litigant's delays

(something that this Court has made clear is not the triggering

factor here), lays its principal stress on the nonexistence of an

order that placed a mantle of protection over the document that

has inexcusably been opened to public disclosure (an

understatement) by Sanchez.     With all respect, that contention

brings to mind the hoary anecdote about the young man who, having

murdered both his parents, asks the court's mercy on the ground

that he is an orphan.     Here the absence of a protective order,

sought from the beginning by USA Funds in a request that was then

expressly tied to the document later published because of

Sanchez' misconduct, is unquestionably due to Sanchez' failure to

provide a response as he had promised.       Sanchez' argument on that

score is totally without merit.9

     There is no question as to this Court's authority to order

the ultimate sanction of dismissal in the face of such egregious

conduct--or as to the propriety of doing so.         Nat'l Hockey League

v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) made that plain

more than three decades ago in the context of repeated violations

in the course of discovery (an area less damaging to the opposing

party than Sanchez' current misconduct)--here is the relevant

excerpt from that per curiam opinion (id. at 643):


     9
        This Court has given full consideration to all other
contentions in Relator's Opposition. None affects the analysis
and result set out here.

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     But here, as in other areas of the law, the most severe
     in the spectrum of sanctions provided by statute or
     rule must be available to the district court in
     appropriate cases, not merely to penalize those whose
     conduct may be deemed to warrant such a sanction, but
     to deter those who might be tempted to such conduct in
     the absence of such a deterrent.

     Far more recent cases in our own Circuit have reconfirmed

and applied that teaching.     Two of them merit both citation and

quotation.

     First, here is a relevant excerpt from the very beginning of

Dotson v. Bravo, 321 F.3d 663, 665 (7th Cir. 2003):

     "[T]here are species of misconduct that place too high
     a burden...for a court to allow a case to continue."
     Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir.
     1993).

Then, after quoting from Nat'l Hockey League, Dotson, id. at 667

went on to say:

     Further, it is axiomatic that the appropriateness of
     lesser sanctions need not be explored if the
     circumstances justify imposition of the ultimate
     penalty--dismissal with prejudice.

Finally, turning to "the court's inherent authority to rectify

abuses to the judicial process" (id., citing Chambers v. NASCO,

Inc., 501 U.S. 32, 49 (1991), Dotson, 321 F.3d at 668 quoted this

from Barnhill, 11 F.3d at 1368:

     Misconduct may exhibit such flagrant contempt for the
     court and its processes that to allow the offending
     party to continue to invoke the judicial mechanism for
     its own benefit would raise concerns about the
     integrity and credibility of the civil justice system
     that transcend the interests of the parties immediately
     before the court.


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     Most recently, Wade v. Soo Line R.R., 500 F.3d 559 (7th Cir.

2007) addressed the propriety of visiting a lawyer's sins upon

the client in these terms (id. at 564, most citations omitted):

     Attorneys' actions are imputed to their clients, even
     when those actions cause substantial harm. A litigant
     bears the risk of errors made by his chosen agent.
     Sanctions for misconduct are within the discretion of
     district judges, National Hockey League v. Metropolitan
     Hockey Club, 427 U.S. 639 (1976), and dismissing this
     case was not an abuse of discretion.

That same perspective, which focuses on the impact of lawyer

conduct on the justice system and on the client's adversaries

rather than on the client's situation, was strongly voiced as far

back as Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962)(footnote

omitted):

     There is certainly no merit to the contention that
     dismissal of petitioner's claim because of his
     counsel's unexcused conduct imposes an unjust penalty
     on the client. Petitioner voluntarily chose this
     attorney as his representative in the action, and he
     cannot now avoid the consequences of the acts or
     omissions of this freely selected agent. Any other
     notion would be wholly inconsistent with our system of
     representative litigation, in which each party is
     deemed bound by the acts of his lawyer-agent and is
     considered to have "notice of all facts, notice of
     which can be charged upon the attorney." Smith v.
     Ayer, 101 U.S. 320, 326.

     Indeed, that approach is even less troublesome here.             After

all, if Salmeron's qui tam action has ultimate merit, she will

have lost only the opportunity to grasp the brass ring of a




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relator's share of the recovery.10          But the United States, which

has until now declined to involve itself (thus permitting

Salmeron to proceed as relator), might seek to take up the

cudgels if that were the case, so that any culpable defendant

would be taken to task.

     In all events, what has been set out here amply demonstrates

the appropriateness of a dismissal of this action with prejudice.

This Court so orders.          By definition all pending merits-related

motions are denied as moot.



                                 ________________________________________
                                 Milton I. Shadur
                                 Senior United States District Judge

Date:        August 18, 2008




        10
        Because the current dismissal obviates the need to deal
with the pending dispositive motions filed by defendants, this
Court has no occasion to evaluate that possibility.

                                       23