Attorneys & Lawyers & Counselors, Discovered on Demand

Discovering to Discover thru Discovery how it was Discovered

When I first heard of the discovery dispute and resolution ordered in RuizBueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013) I thought: This is the worst punishment possible. They have to conduct discovery into discovery! It must be one of Dante’s circles in the pits of litigation hell. Please, just sanction me instead!

SCOTUS

How could you punish anyone more than forcing them to pose and respond to requests under Fed.R.Civ.P. 26(b). Then being subjected to inquires under Fed.R.Civ.P. 26(b) requiring explanations into compliance with Fed.R.Civ.P.26(b)? The viciousness of the gratuitous circuitousness. Is there no justice anymore?

Deciding Disputes

Or so I thought. Despite my horror, I couldn’t believe it was true. I questioned the legitimacy of ordering discovery into discovery. Under what authority? How do you get there? I gave into my curiosity and read the Opinion and Order in RuizBueno v. Scott. Not only did it all make sense, it was reasonable and rational. To top it off the support came right out of the Advisory Committee Notes to Fed.R.Civ.P. 26(b) itself–in 1946!

To keep a long story extended, one party’s attorney was recalcitrant and intractable about answering two interrogatories inquiring into what and how counsel searched for emails requested and subject to production. The emails were relevant but remarkably the emails were bot produced. Due to the apparent conduct and a lack of cooperation, the issue of how counsel handled the discovery process itself became relevant to the proceeding. After all, these days it seems the attenuated line between intentionally hiding evidence and being non-cooperative during discovery is more delicate than ever.

Ideally Apparent

The Court proffered a perfect solution based on compliance with the spirit (and basis) of the Rules: “In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements ……. and would have actively sought to avoid such disagreements through collaboration.”

The Court went through a fully cited primer that, understandably, sounds like a lecture to counsel on how to behave. After sounding constrained but frustrated by counsel’s failure to respond to what efforts were undertaken to locate certain emails, the Court described the conduct and justified how “discovery into discovery” became relevant and appropriate. By this point in the sermon, I had been fully converted and was even sitting in the balcony with the choir.

Restraint Queried

To emphasis the point the Court posed apparently rhetorical, and reasonable, questions about the searching for the emails : “How did the individual defendants do that here? Through keyword searches? Through searching by sender or recipient? Through searching emails sent or received in a specified time frame? Or going by memory? Did they all do it the same way, or were they left to pick among various methods? The record provides no answer to these questions.” The fact the Judge ends up only ordering the interrogatories be answered shows greater restraint, patience and tolerance than many other courts I have seen exhibit.

The Court emphasized the preferable way to have handled the discovery process in explaining the seemingly unusual ruling:

What should have occurred  here is . . . counsel should have engaged in a collaborative effort to solve the problem.  That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough.  That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable.  That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.

Confronting Communication

Counsel had argued collaborating with opposing counsel on discovery would violate the duty of zealously advocating for the client and could be volitional of client owed privileges. The Court addressed this contention with a cite to Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008):

It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation.  Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Changing Collaboration

With Minnesota’s state court amended discovery rules in effect, I anticipate seeing the Courts begin to rule the same in future discovery disputes. It will be interesting to see if the emphasized collaboration will come to pass.

The discovery process is conducted with such adversarial zeal since I began practicing, it is normal to expect relevant information will be withheld (at least I expect it). It was fairly common for me to request and receive attorney’s fee awards as a sanction against opponents for dilatory and incomplete discovery answers/responses.

Compelled Recollection

This is no longer the case. Not that there is more cooperation. It is just the Courts got tired of the constant discovery squabbles. Now a hearing on a motion to compel is rare with informal letter briefs required and tele-cons with the Court taking place instead of formal motion hearings. But I still fondly recall when it wasn’t so . . . .

About 10 years, I brought a motion to compel answers and responses to discovery that were well overdue and did not appear forthcoming despite my constant cajoling. My opponent eventually produced the discovery but not until I had noticed the motion and had filed/served all required supporting papers.

It was at about a week before the hearing and he called asking if I would cancel the motion since it was moot now that I got what I wanted. I said I was not inclined to do so unless he paid $500 for the fees my client incurred for me preparing/filing the motion (he had been thoroughly forewarned well in advance of being served). He scoffed at me. So I said I would ask for more than $500.00 from the Court and see him at the hearing.

The hearing went forward and I kept my word to counsel. The same argument was made. The Court found that since my client incurred the fees to get the discovery produced, the fees would be awarded against counsel. The Judge ordered fees of $1,000.00 based on the motion submitted.

I sure haven’t had that happen in a while. Maybe that’s good . . .

MKT

Standard

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