Fifth Circuit Holds Lawyer Could Be Sanctioned Under 28 U.S.C. § 1927 For “Irrelevant Lines of Questioning” in Depositions

In Vaughan v. Lewisville Independent School Dist., No. 22-40057 (5th Cir. Mar. 9, 2023), the Fifth Circuit held that a plaintiff’s lawyer who asked four deponents about subject areas far afield of the dispute could be personally monetarily sanctioned for “unreasonable” and “vexatious” multipliction of the proceedings under 28 U.S.C. § 1927.

“Frank Vaughan filed a lawsuit against Lewisville Independent School District (‘LISD’) and seven school board members, alleging that the district’s at-large election system violated Section 2 of the Voting Rights Act (‘VRA’) . . . . The district court determined that Vaughan lacked standing to bring his Section 2 claim because he is white. The district court then granted defendants’ motion for sanctions against Vaughan, his attorneys, and their law firm based on the findings that Vaughan’s lawsuit was frivolous under 52 U.S.C. § 10310(e) and his attorneys multiplied proceedings unreasonably and vexatiously under 28 U.S.C. § 1927.”

The Fifth Circuit vacates the fee award under section 10310(e) (the VRA’s fee-shifting provision for parties), holding that the plaintiff’s standing actually presented an issue of first impression in the circuit, and by its very novelty could not be deemed frivolous. Nevertheless, the panel affirmed in part the section 1927 sanctions for pursuing “irrelevant lines of questioning” during four depositions, holding that it was not an abuse of discretion.

“The [plaintiff’s] attorneys questioned school board members on a range of topics that bear little relevance to a voting rights lawsuit, including a separate Title IX suit against the school district, claims of sexual harassment at a school, state standardized testing, mental health accommodations for students during standardized testing, and board members’ individual views on policy topics such as allowing teachers to carry guns on campus. Vaughan and his attorneys offer no theory of relevance to this court, noting only that LISD did not move to quash the depositions and made only form objections.”

The panel notes that while the preferred course to block irrelevant questioning is to seek a protective order under Fed. R. Civ. P. 30, “this court has never held that failure to file a Rule 30 motion precludes later relief under § 1927 for unreasonable and vexatious multiplication of proceedings.” Thus on remand, “the district court should identify ‘which, if any, excess costs, expenses, or attorney’s fees were incurred because’ of the attorneys’ unreasonable and vexatious multiplication of proceedings through irrelevant deposition topics.”

Finally, the panel vacates section 1927 sanctions against plaintiff counsel’s law firm. “[W]e join the majority of our sister circuits in holding that § 1927 does not provide grounds for a district court to award attorney’s fees against law firms or other entities not admitted to practice law.”