
    CIRCUIT COURT OF FAIRFAX COUNTY
    Fairfax County Department of Family Services v. Larry Neidig
    May 14, 1997
    Case No. (Chancery) 145239
   By Judge Stanley P. Klein

Complainant Fairfax County Department of Family Services (Fairfax County) moves die Court for a protective order prohibiting Respondent Larry Neidig from conducting two depositions and subpoenaing certain documents in support of his Motion for Sanctions pursuant to Virginia Code § 8.01-271.1. The Court has considered the memoranda of die parties, the applicable authorities, and the arguments of counsel. For the reasons set out herein, the Motion for Protective Order is granted.

On May 12, 3995, Fairfax County filed a petition in the Fairfax County Juvenile and Domestic Relations Court alleging that Neidig had sexually abused his two daughters. The children were removed from Neidig’s home pursuant to an Emergency Order of the Juvenile Court.

On April 26, 1996, while the petition was still pending in die Juvenile Court, Theresa Belcher, the social worker whose affidavit supported the petition, and another woman, Nancy Bond, took the girls to Norfolk to be examined by Dr. John de Triquet for evidence of sexual abuse. Although the parties differ significantly in their recitations of what Dr. de Triquet subsequently reported to Cynthia Tianti, an Assistant Fairfax County Attorney, they agree that Dr. de Triquet advised her that there existed no physical signs of genital trauma to the children. Neidig apparently did not know about the examinations of the children by Dr. de Triquet untU January 23,1997.

On July 16, 1996, counsel for the parties endorsed a Consent Order in the Juvenile Court wherein the parties stipulated that if a trial took place on the petition, toe evidence would be sufficient to prove that toe children were abused within toe meaning of Virginia Code § 16.1-228(4). The order further reflected that Neidig maintained his innocence of toe charges. It appears that toe Consent Order was presented to the Juvenile Court to avoid a trial in that court so that toe parties could obtain an early trial date on toe inevitable de aovo appeal to toe Circuit Court.

An appeal in fact ensued in Circuit Court, where no pre-trial discovery was propounded by counsel for Neidig. Trial was conducted before Judge Gerald Bruce Lee on December 11,12,16, 17, and 13, 1996. Judge Lee rendered a decision in favor of Neidig and granted Mm custody of his children by an order entered January 3,1997. That order was suspended pursuant to Rule 1:1 of toe Rules of toe Supreme Court of Virginia.

On January 23, 1997, counsel for Neidig learned of toe physical examinations in Norfolk, and on January 28,1997, Neidig filed his Motion for Sanctions. In his motion, Neidig asserts that toe Office of toe County Attorney violated Va. Code § 8.01-271.1 by moving forward with toe abuse petition and “suppressing” toe findings of Dr. de Triquet On February 5,1997, Fairfex County filed an Opposition to Neidig’s Motion for Sanctions which contained affidavits from Ms. Tianti and Dr. de Triquet. Counsel tor Neidig then noticed toe depositions of Ms. Belcher and Ms. Tianti and filed a subpoena duces tecum directed to the girls’ psychologist On February 13, 1997, Fairfax County filed toe instant Motion for Protective Order seeking to prohibit toe depositions and toe quashing of toe subpoena duces tecum.

A hearing was held on toe Motion for Protective Order on February 28, 1997. Counsel for Neidig argued that the pleading which forms toe basis for toe sanctions request is toe July 16, 1996, Consent Order entered by toe Juvenile Court This Court temporarily canceled the depositions subject to potential reconsideration upon receipt of a brief from counsel for Neidig setting forth the legal and factual basis for allowing such discovery in this case at this time. Neidig’s brief and an Opposition thereto have now hem received by the Court

The issue of the propriety of initiating discovery in support of a Motion for Sanctions under Va. Code §8.01-271.1 is apparently an issue of first impression in the Commonwealth. As Virginia’s sanctions statute is modeled after Rule 11 of the Federal Rules of Civil Procedure, authority interpreting the Federal Rule is instructive. Cf. Oxenham v. Johnson, 241 Va. 281, 286-88 (1991) (Virginia Supreme Court relies on federal decisions interpreting Rule 11 in determining scope of§ 8.01-271.1).

In 1983, Rule 11 was amended to make sanctions mandatory and to expand the scope of the rule to cover not only "pleadings” but also a "motion or other paper.” The Advisory Committee Notes from that process urged courts to limit the scope of sanction proceedings to the record and allow discovery only in ‘extraordinary circumstances* so that the coste attendant to collateral litigation over sanctions would not outweigh the benefits intended by Rule 11. See Fed. R.Civ.P. 11, Advisory Committee Notes.

Notwithstanding this Court’s request for authority supporting discovery in sanctions litigation, Neidig has cited no case wherein such discovery was approved by any federal court. To the contrary, in Indianapolis Colts v. Mayor and City Council, 775 F.2d 177 (7th Cir. 1985), the Seventh Circuit relied on the Advisory Committee Notes to Rule 11 in affirming the District Court’s refusal to allow such discovery. The Court reasoned that ”[w]e intend to end this vexatious litigation rather than encourage parties to pursue secondary and patently frivolous litigation over attorney’s fees.” Id. at 183; see also, Borowski v. DePuy, Inc., 876 F.2d 1339, 1341 (7th Cir. 1989) (Seventh Circuit reaffirms "only in extraordinary circumstances" test for allowing discovery in Rule 11 context).

Although the Virginia Supreme Court has yet to address this specific issue, the Court’s decisions to date concerning the scope of Virginia Code § 8.01-271.1 evidence a reluctance to interpret the statute broadly. See Tullidge v. Board of Supervisors of Augusta County, 239 Va. 611 (1990) (award of sanctions by trial court reversed); County of Prince William v. Rau, 239 Va. 616 (1990) (award of sanctions by trial court reversed); Oxenham v. Johnson, 241 Va. 281 (1991) (award of sanctions by trial court reversed); Nedrich v. Jones, 245 Va. 465 (1995) (award of sanctions by trial court on eight of ten counts reversed); Jordan v. Clay's Rest Home, 253 Va. 198 (1997) (award of sanctions by trial court reversed); but see, Lake v. Northern Va. Women's Medical Ctr., Inc., 253 Va. 255 (1997) (case remanded in part for reconsideration of denial of award of sanctions).

In Oxenham v. Johnson, the Supreme Court expressed die same concern shared by the Advisory Committee to Rule 11 and the Seventh Circuit in Indianapolis Colts, when it stated “courts should take care that die litigation of a sanction issue does not itself defeat one purpose of Code § 8.01-271.1, that of reducing the volume of unnecessary litigation.” Oxenham, 241 Va. at 286. This Court finds the logic underlying the "extraordinary circumstances” test recommended by the Advisory Committee and adopted by the Seventh Circuit persuasive and hereby adopts that test in this case. It is therefore within that analytical framework that this Court must examine Neidig’s request to depose Tianti and Belcher.

On brief and in oral argument, counsel for Neidig principally argued that the County Attorney's Office violated ethical standards in withholding Dr. de Triquet's findings from them until the underlying litigation had been concluded. However, they cited no authority in support of their argument dial an alleged violation of a lawyer's ethical obligations can, of itself constitute a basis for sanctions under Rule 11, §8.01-271.1, and their progeny, and a reasonable interpretation of Virginia's sanctions statute belies any such claim. Sanctions under tire statute can be premised solely upon an affirmative act of a party or attorney.

The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fací and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (iii) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Va. Code § 8.01-271.1. The mere withholding of information in die absence of a discovery request seeking its disclosure does not provide a basis for the imposition of sanctions under § 8.01-271.1, even if a lawyer may have been ethically required to disclose it

Neidig further argues that the “litigation was continued after the medical expert Complainant sought did not give the expected result” He contends that courts in die Eastern District of Virginia and die Fourth Circuit have found that diere is a continuing duty on litigants to make die inquiries required under Rule 11 and § 8.01-271.1 and that facts which thereafter come to the attention of counsel cannot be ignored. The cases upon which Neidig relies are inapposite. The Fourth Circuit in fact, has rejected die “continuing duty" theory.

Moied^r^e tid^isty conmuiee note to the amended rule states that the signer’s conduct is to be judged as of the time the pleading or other paper is signed. Fed. R. Civ. P. 11 Advisory Committee Note. It is difficult to imagine why this comment would be made if die rule were meant to impose a continuing obligation on die attorney.

Brubaker v. City of Richmond, 943 F.2d 1363, 1382 (4th Cir. 1991) (enpbasis supplied). In addition, the Virginia Supreme Court has also rejected any “continuing duty” concept

Although we agree with Qxenham’s contention that Code §8.01-271.1 imposes no continuing duty upon a lawyer to “update his pleadings in light of any new findings,” [citation omitted] we reject his contention that he had no further duty to investigate Johnson’s role after filing the motion for judgment The duty of “reasonable inquiry” arises each time a lawyer files a “pleading, motion, or other paper" or makes "an mal motion.” Code § 8.01-271.1. If Oxenham had filed any paper or made any motion in die case after he knew, or reasonably should have known, that he could not create a factual issue of Johnson’s involvement and malice, the court would have been justified in imposing a sanction against him.

Oxenham v. Johnson, 241 Va. at 287-88 (citation omitted).

Any basis for die imposition of sanctions must therefore be premised solely upon die contents of die July 16, 1996, Consent Order from the Juvenile Court Even if the imposition of sanctions in a de novo appeal in a Circuit Court can be based upon an attorney's signature on a Consent Order entered in die Juvenile Court, this Court finds that Neidig has failed to establish any "extraordinary circumstances” which would warrant the onset of discovery proceedings in this Court The judge who will conduct the sanctions hearing will already have access to Mr. Volzer’s recollection of his conversation with Dr. de Triquet, an affidavit from Dr. de Triquet noting his conversation with Ms. Tianti, Dr. de Triquet’s medical records concerning die Neidig children, and Ms. Tianti’s affidavit concerning her conversation with die doctor.

Under these circumstances, this Court declines to take a first step down what could become a very slippery slope towards acceptance of exhaustive sanctions litigation by both the judiciary and the bar. Such collateral litigation could subsume the intended salutary effect of Code § 8.01-271.1 "of reducing the volume of unnecessary litigation." Oxenham, 241 Va. at 286. Accordingly, Fairfax County’s Motion for Protective Order forbidding die depositions of Cynthia Tianti and Margaret Belcher is granted. 
      
       According to an affidavit submitted by Ms.Tianti, Dr. de Triquet also told her that"! know they were abused" and "something happened here.”
     
      
       Neidig was also criminally prosecuted for die alleged abuse of one of die children and was found not guilty. ..
     
      
       Fairfax County filed a Cross-Motion for Sanctions on February 25, 1997, alleging that Neidig’s Motion for Sanctions itself violated Code§ 8.01-271.1.
     
      
       The Court allowed die subpoena duces tecum to be saved on die children’s psychologist subject to a protective order of non-disclosure as Neidig is die legal custodian of the children and, therefore, has a legal right to diese records.
     
      
       Specifically, Ethical Consideration 8-11 relating to government lawyers.
     
      
       Respondent’s Memorandum of Points and Authorities in support of discovery requests, p.5.
     
      
       This Court does not decide this issue at this time.
     