eDiscovery Daily Blog

eDiscovery Case Law: There’s a New Sheriff in Town – Judge Facciola


In Taydon v. Greyhound Lines, Inc., District of Columbia Magistrate Judge John Facciola laid down the law to the parties in the case requiring cooperation on eDiscovery issues after “[t]he filing of forty-page discovery motions accompanied by thousands of pages of exhibits” and made it clear that the parties would be expected to “meet and confer in person in a genuine, good faith effort to plan the rest of discovery”.

According to the plaintiffs, defendant infringed on their wireless technology by utilizing the plaintiffs’ technology on its buses. Each side claimed discovery deficiencies and delays by the parties and filed motions accordingly.  The case was referred to Judge Facciola for discovery and in his 12 page Memorandum Opinion on June 6, he denied both motions.  However, he did note that the defendant’s application for sanctions has merit based on Rule 37, which indicates that “if a motion to compel is denied, the court may order the moving party to pay the opposing party’s expenses, including attorney’s fees, unless the motion was “substantially justified.””  Finding that not to be the case, Judge Facciola ordered the plaintiffs “to show cause why a sanction, in the form of attorney’s fees, should not be awarded against them for the time defendant spent opposing plaintiffs’ motion to compel”.

However, it’s the closing of the opinion where he laid down the law to the parties regarding the cooperation he expects moving forward on eDiscovery issues:

“III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation…First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.”

To download a copy of the Sedona Conference Cooperation Proclamation, click here.

Requiring a conference every two weeks to discuss discovery issues when parties can’t agree – sounds like a great idea to me!  So, what do you think?  Are attorneys taking the responsibility to conduct a Rule 26(f) conference to discuss discovery issues seriously?  Would Judge Facciola look good in a ten gallon hat?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.