A woman who alleged that Bob Dylan sexually assaulted her in the spring of 1965, when she was just 12, has agreed to dismiss her 2021 New York lawsuit with prejudice. But the matter didn’t stop there.
Rather than walking away from the highly contentious legal battle, the songwriter is now seeking to make plaintiff’s counsel, Daniel Isaacs and Peter Gleason, pay for what his lawyers call “brazen” discovery violations.
Dylan accused plaintiff’s counsel of failing to adequately investigate their client’s claims before filing the lawsuit. He got the US District Court for the Southern District of New York’s consent to file a motion to seek monetary sanctions for discovery-specific violations against the lawyers on Aug. 8.
Under the federal rules, lawyers may be on the hook for a client’s misrepresentations in discovery if a court determines that the lawyer failed to make a reasonable inquiry into the reliability of their client’s claims.
Put another way, a lawyer may be held personally liable for repeating a client’s lies if they ought to have known better.
What constitutes knowledge based on a “reasonable inquiry” is highly fact-dependent, but “common sense” is the key, Arthur Burger, chair of Jackson & Campbell PC’s professional responsibility practice, told Bloomberg Law.
Willful blindness won’t do, Burger said. It’s the functional equivalent of actual knowledge under ABA Formal Opinion 491.
That opinion, released in 2020, is a little “off point"—it deals with screening clients in non-litigation scenarios—but the principle is the same, Burger said.
The opinion provides that where the circumstances suggest a “high probability” that a client is trying to enlist the lawyer’s help in achieving some fraud, the lawyer must do more digging.
In general, once a lawyer has realized that a client isn’t cooperating or is somehow defrauding opposing counsel or the court, things can go one of two ways, Burger said.
Either the lawyer will be able to persuade their client to do the right thing, or they won’t. In the latter case, the lawyer has a conflict and will likely need to seek the court’s permission to withdraw, Burger said.
Art, Not Science
Although lawyers are required to correct a client’s misrepresentations in the record when a client refuses to, they also have a duty to minimize the harm the withdrawal causes. A lawyer should reveal only as much as necessary to ensure they don’t run afoul of the rules without gratuitously harming the client’s interest.
It’s an art, not a science, Burger said.
According to the Aug. 4 letter seeking leave to file the sanctions motion, Dylan’s lawyers know the plaintiff, who uses the pseudonym J.C. in court filings, either withheld or destroyed relevant documents based on emails collected from “key third parties.”
They claim that some of the documents “undermine and contradict” her allegations.
J.C. isn’t required to file any response to the motion for discovery-related sanctions—Dylan hasn’t asked to seek sanctions against her—but Judge
In a letter opposing Dylan’s request for leave to seek monetary sanctions, Isaacs and Gleason—no longer representing J.C.—have placed the blame for any discovery violations squarely on their former client.
Contrary to Dylan’s claim that they ignored their discovery obligations, Isaacs and Gleason say they tried “repeatedly” to obtain the necessary documents from their former client, saying it was like “pulling teeth.” They claim that J.C.'s “recalcitrance in providing discovery documents” was “in no way” their fault and that they did the best they could given the circumstances.
Those circumstances included a plaintiff who was “suffering PTSD,” which they said was exacerbated when someone publicly revealed her true identity.
Isaacs and Gleason offered several other excuses, including a competing three-week trial and a trip overseas, for the delays over the approximately two months leading up eventual dismissal by J.C.
The lawyers say their difficulties with their client’s discovery response came to a head when they went to her home on July 17, at which time “it was discovered that there were additional documents” that she “refused to turn over.”
The lawyers claim they told J.C. the following day that they would move to be relieved as counsel if she refused to produce the documents. They say she elected to “discharge” them instead.
Attempting to show that they shouldn’t be sanctioned, without revealing any client confidences, may leave them walking a fine tightrope.
Dylan is represented in the matter by Gibson, Dunn & Crutcher LLP and Hurwitz & Fine PC.