4.6 Rule 56(h) Sanctions

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.6 RULE 56(h) SANCTIONS

4.601 In General. Rule 56(h), Affidavit or Declaration Submitted in Bad Faith: If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court- after notice and a reasonable time to respond, may order the submitting party to pay the other party the reasonable expenses, including attorney fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions.

4.602 Application. "Rule 56(g) [now Rule 56 (h)] requires a court to award reasonable expenses, including reasonable attorney fees, incurred by a party because of affidavits filed by an opposing party in bad faith or solely for the purposes of delay. Rule 56(g) does not define "bad faith," but it ordinarily involves a dishonesty of belief or purpose, ³¹⁵ or "where a claim is entirely without color and has been asserted wantonly, for purposes of harassment or delay, or for other improper purpose." ³¹⁶ A finding of bad faith is inherently a factual inquiry subject to review only for clear error. ³¹⁷

4.603 Due Process Requirements. The process due to a party will differ depending on the circumstances of the case, but generally requires that a party receive notice that the court is considering sanctions against him, the specific conduct considered sanctionable, and, if possible, the authority of the sanction. The court need not, however, provide notice of the specific conduct subject to the sanctions nor the applicable standard of conduct with which the party is required to comply." ³¹⁸

4.604 Cases. In Bowers v. University of Virginia, ³¹⁹ the court found that the filing of 800 unredacted pages of deposition transcripts used to determine subjective intent for the filing of the offensive affidavit that was filed where counsel had no realistic hope of prevailing, moreover sanctions were supported under 28 U.S.C. § 1927.

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