Meh. Read the opinion and you'll see the judge doesn't disagree with their assertion that the client has valid interests that were served by what they did, they just took it a step too far when they filed the amended complaint - and to be fair, the amendments were in large part to remove allegations against PADI that the settlement had settled. It was sloppy litigation strategy that caused a opposing party some minor additional costs they shouldn't have had to incur, but as the opinion and the meager dollar figure of the sanctions suggest, it wasn't ragingly unethical...from a legal perspective.
From a business ethics perspective...let's just say PADI did a fine job of making lawyers look like upstanding ethicists. You literally could not pay me enough to teach these kinds of classes, but getting knifed in the back by your certifying agency is the kind of thing that's been known to provoke...let's call it less than legal retaliatory behavior by aggrieved individuals. And when you hear about it happening, you think 'well, they sorta had it coming.'
---------- Post added November 12th, 2014 at 05:37 PM ----------
Please don't make me laugh that hard.
---------- Post added November 12th, 2014 at 05:42 PM ----------
Of course, having turned over the document without even receiving a discovery request covering it (maybe they'll claim it was part of their initial disclosures obligation under the Fed R Civ P) makes it very hard to assert privilege/work product protections at all...which is what you have to do to raise the question of whether it's protected and get the court to rule on it. The TDI letter is grossly self-serving, but he's 100% right that turning over documents submitted to you by your instructor after an accident, for which you have a meritorious claim of privilege, is sleazy.
At this point, if I were a PADI-affiliated professional of any stripe, about the only thing that would make me trust PADI again is a public statement explaining who decided to play this matter in this way, that all involved in those decisions have been terminated, and that PADI will be indemnifying the affected instructor.
Just wanted to add a few comments- remember litigation at this level is a very complex matter. The law and rules are as much a component of strategy as the facts are.
A- Some jurisdictions (many state and most federal courts- FRCP Rule 14 material) have an open/automatic file discovery rule that requires ANY materials that are relevant and in control of the opposing party MUST be turned over- PERIOD. Now in some cases It MAY be turned over with a protective order but- almost always will become evidence at some point and therefore publicly disclosed. This type of record would clearly meet the relevancy and materiality component of any discovery obligation in such a law suit. So I don't see TDI or the online crowd getting this right.
B- The court sanctioned the TIME wasted by party for the misleading pleading. They did not sanction the conduct in a punitive way- ie the court did not find the conduct grossly unethical or prejudicial. Again seems many in the peanut gallery don't see the difference. In a multimillion dollar lawsuit a 2000 dollar sanction isn't sending a message - it was a stratagem call.
C- PADI has reduced its future liability by analyzing the actuarial cost of litigation, potential verdict, and collateral use of a negative verdict against a lump sum payout and future potential cross claim award. This is simply business math -every litigator helps their client engage in this analysis when discussing settling a case. It seems cold but it's a necessity in operating a business. Where I think it becomes screwy is the relationship of instructors, agency, and insurance carrier. I see a world of conflicts there that really are a separate discussion. There needs to be a better defined bright line.
D- the only questions left here I see are: whether cross claims can still be brought/awarded, whether there is still joint-several liability in post verdict indemnity, and what the PR implications may be given the dynamic of Boy Scouts and Instructors in these circumstances. I would imagine the settlement would entitle the other defendants to move to amend and file cross claims. BUT also see a judge denying as there was never a joint defense and therefore the potential cross claims existed at the inception of the case- and the failure to file them at the outset is a waiver. Could go either way. Depends on the circuits case law and I don't know where they fall.
One can guess the jurisdiction may not permit cross claims at this point or joint-several liability claims - which if it is true would be why they effected the settlement individually rather than globally in which case PADI is in the clear economically. One has to guess the litigation costs alone would be 250k or more without a verdict. However if there is a surviving cross claim or a joint-several liability component then PADI's decision seems less wise. Knowing what is in the public domain - If I were advising PADI I probably would have looked at a global resolution to make it cleaner- but again we are not privileged to all the inside baseball and facts from depositions etc.
On first blush - it appears - the instructor is in the wrong and liability rests with him. Leaving two students to chase a third is not "maintaining control of all DSD participants at all times". I have also thought - and said- a 2:1 ratio is the better DSD ratio without a certified assistant and 4:1 with an assistant should be the maximum.
But, It also violates the Boy Scout policy of no single adult alone with a single youth. So on both PADI and BSA policy grounds the instructor is in the wrong. This may have been the driving factor in PADIs settlement and the family's acceptance of it.
Given that- I think TDI got it wrong in sending out the letter. It could come back to bite them when they are in a lawsuit. Hypocrisy does not play well with a jury. And if counsel cleared it they need new counsel.
Just my 2 cents.
