eDiscovery Daily Blog

• June 3, 2011

In DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011), repeated, flagrant, and unrepentant failures of the District of Columbia to comply with discovery orders, failure to supplement discovery responses, and eventual production of thousands of e-mails—some more than two years old—after the date of trial resulted in a sanction of waiver of privilege over documents sought by plaintiffs.

Plaintiffs filed an action seeking injunctive and declaratory relief for the failure of the District of Columbia Government to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act. On the first day of trial six years later, counsel for the District acknowledged that the District several days earlier had begun a rolling production of thousands of emails per day that was expected to continue through the end of trial. Counsel for the District stated that the court had not been informed of production problems because it had been hoped review of the documents for relevance and privilege and thus production of the documents could have been completed earlier. From the bench, the court ordered the District to produce all of the email without objection and with privilege waived within one week of the end of the trial so that plaintiffs could seek to supplement the trial record if necessary. The District sought reconsideration of the order.

Likening the District’s posture to an airplane with landing gear that deploys only after touchdown, the court denied the District’s motion. Waiver of privilege was an appropriate sanction because it was just and was proportional between offense and sanction, considering the District’s violation of multiple discovery orders and failure to meet its obligation to supplement its discovery responses. The court concluded that its sanction was justified considering prejudice to plaintiffs, prejudice to the judicial system, and the need to deter similar misconduct in the future. Since the District chose not to bring the situation to the court’s attention until the day of trial, the court “had no practical alternative short of entering a default.”

The court held that whether the District had acted in good faith and whether plaintiffs also had committed discovery violations was irrelevant:

Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court. The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery — discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

So, what do you think?  Have you ever had opposing counsel try to produce documents at the beginning of trial – or even after?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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