## Facts

- Barry Switzer sued a law firm for legal malpractice, seeking more than $4 million plus punitive damages.
- The court issued scheduling orders requiring mediation by specified deadlines and participation in a judicial settlement conference.
- The parties missed the mediation deadline despite extensions; the court admonished them and again ordered mediation and a report.
- Mediation ultimately occurred, but the defendant firm’s representatives, its insurer’s representative, and the defendant’s lead counsel did not attend.
- The court issued a detailed order stating that parties, insurers, and lead counsel were required to attend mediation in person and imposed a $1,120 monetary sanction on the defendant for nonattendance.
- The court later ordered a judicial settlement conference before a magistrate judge; again, no representative for the defendant or its insurer attended, and defense trial counsel arrived late.
- The magistrate judge found repeated disregard of court orders and recommended severe, issue-related sanctions short of default judgment: barring the defendant from contesting liability except through cross-examination and possible rebuttal evidence.
- The defendant objected, arguing the recommended sanction was excessive and asserting the magistrate acted with hostility and bias.

## Issues

1. Whether severe, issue-related sanctions limiting the defendant’s ability to defend on liability were authorized and appropriate for repeated failures to comply with court-ordered mediation and settlement procedures.
2. Whether the recommended evidence-preclusion sanction was “just” and sufficiently tied to the misconduct to satisfy proportionality and due process requirements.
3. Whether alleged magistrate bias required rejecting the recommendation or otherwise altering the sanctions determination.

## Decision

- The court largely overruled the defendant’s objections and adopted the magistrate judge’s recommendation in substantial part.
- The court imposed a severe, issue-related sanction restricting the defendant from presenting evidence or argument contesting liability, while allowing cross-examination of the plaintiff’s witnesses and limited rebuttal.
- The court declined to enter default judgment, concluding that a tailored restriction on the liability defense was sufficient.
- The court rejected the defendant’s bias allegations, finding the magistrate’s response was grounded in documented, repeated noncompliance rather than personal animus.

## Legal Principles

- Under Fed. R. Civ. P. 16(f), a court may sanction a party or attorney for failing to appear at a pretrial conference or failing to obey a scheduling or other pretrial order, including orders requiring participation in court-directed ADR.
- Sanctions available under Fed. R. Civ. P. 37(b)(2) include prohibiting a party from supporting or opposing designated claims or defenses or from introducing designated matters in evidence; default judgment is an available but extreme remedy.
- A court may also rely on its inherent authority to impose sanctions necessary to protect the judicial process, particularly where conduct reflects willful disregard of court orders.
- Severe sanctions must be “just” and specifically related to the misconduct and resulting prejudice; courts may escalate beyond monetary sanctions when prior lesser measures have failed.
- Evidence-preclusion sanctions may be appropriate short of default judgment when repeated noncompliance shows disregard for court-ordered procedures, provided the sanction is tailored to preserve some adversarial testing (e.g., allowing cross-examination and limited rebuttal).

## Conclusion

The court imposed strong, trial-affecting sanctions after the defendant repeatedly ignored court-ordered mediation and settlement requirements, limiting the defendant’s ability to contest liability to cross-examination and limited rebuttal while rejecting claims that the magistrate’s sanctions recommendation was the product of bias.


Switzer v. Much, Shelist, Freed, Denenberg, Ament, Bell & Rubenstein, P.C., 214 F.R.D. 682 (W.D. Okla. 2003)