Electronic Discovery
Court Tells Litigants “NO MORE WARNINGS” When It Comes to Boilerplate Discovery Objections: eDiscovery Case Law
In Liguria Foods, Inc. v. Griffith Laboratories, Inc., C 14-3041-MWB (N.D. Iowa Mar. 13, 2017), Iowa District Judge Mark W. Bennett declined to sanction the parties for issuing boilerplate objections, but strongly warned them that the use of boilerplate objections in the future would place counsel and their clients at risk for significant sanctions.
In this case related to millions of dollars’ worth of sausage that turned rancid, it became apparent to the Judge Bennett (during a review of another discovery dispute) that both parties had submitted “obstructionist discovery responses” to each other during the discovery process. On January 27, 2017, Judge Bennett entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing, directing the parties to file, under seal, all their written responses to each other’s discovery requests by the following day. Judge Bennett also notified counsel of his intention to impose sanctions on every attorney who signed the discovery responses, if he determined that the responses were, indeed, improper or abusive
The parties filed their written responses to discovery requests, as directed, the following day. Based on his review of the discovery responses, Judge Bennett identified numerous discovery responses, from both sides, that he identified as improper in this ruling. According to Judge Bennett, the improper objections included:
- “not reasonably calculated to lead to the discovery of admissible evidence”;
- “subject to and without waiving its general and specific objections”;
- “to the extent they seek information that is protected from discovery under the attorney-client privilege, the attorney work-product doctrine or is otherwise privileged or protected from disclosure”; and
- “overbroad and unduly burdensome.”
In its brief in response to the Order To Show Cause, the plaintiff acknowledged that many of its objections were not stated with specificity, but asserted that it had not interposed any objection “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” and that some of its objections did include explanations. The defendant, in its brief, stated that its written responses to the plaintiff’s discovery requests were not intended for any improper purposes and that the parties had conducted the litigation in a cooperative and professional manner. The defendant also noted that a magistrate judge had reviewed various defendant responses and found no fault with them, contending that that both parties relied on standard “boilerplate” language to assure that they were not waiving their rights while they met and conferred about the scope of privileges, pertinent time periods, among other issues.
Both sets of counsel ultimately admitted that the reason they used “boilerplate” objections had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses.
Judge Bennett evaluated each boilerplate objections, identifying violations of Rule 26(d), 26(b)(5)(A)(iii) and the “specificity” requirements of Rules 33(b)(4) and 34(b)(2). However, in part because the parties “did not try to raise frivolous defenses for their conduct when called on” the use of “boilerplate” sanctions, Judge Bennett declined to sanction the parties this time. Instead, he provided a new Supplemental Trial Management Order, advising the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.”
Judge Bennett also concluded his order with these strong words, in caps for emphasis: “NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.”
Here’s another recent case where parties were warned about “boilerplate” objections.
So, what do you think? Will we someday get past the issue of lawyers using standard, “boilerplate” objections in discovery responses? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: eDiscovery Case Law
In Ensing v. Ensing, et. al., No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, ordering him to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.
Case Background
This case arose between a divorcing husband and wife operating a winery and boutique hotel in Italy (indirectly through two Delaware limited liability companies) when the husband (Dr. Hans Ensing) tried to remove the wife (Sara Ensing) and appoint himself as manager of one of the entities, and then engage in a series of transactions intended to divest Sara of her interests in the winery and hotel. As a result, Sara (now the plaintiff) initiated action against her husband (now the defendant) in this case in July 2016.
During the case, the defendant produced a “Pledge Agreement” and a “Trust Agreement” purportedly executed by the plaintiff and defendant, making the defendant manager of one of the entities and allowing him to appoint the management for that entity. The plaintiff denied ever signing the agreement and claimed they were “forgeries”. In response to the plaintiff’s claims that the documents were “forgeries,” the defendant told the court that he intended to have “certified copies” of the documents “prepared at the U. S. Embassy in Rome (which never happened) and claimed during an October deposition that a lawyer and accountant had been instrumental in forming the entities (but he couldn’t provide contact information for the accountant or even his nationality).
The defendant also could not produce the originals of either of the disputed documents, but continued to argue that both documents were evidence in his favor. The defendant also ignored the court’s order to turn over the devices on which he testified that he had created and stored the agreements, leading the court to grant the plaintiff’s motion to draw an adverse inference against the defendant, putting the burden on him to prove the two agreements were authentic.
Then, on the eve of trial, the defendant attempted to distance himself from both documents. Nonetheless, the plaintiff offered evidence that the company stamp appearing above her name on the Pledge Agreement wasn’t created until 2015, but the document was created in 2012 and had a computer forensic expert testify that the metadata from the Trust Agreement PDF file revealed that it was created on June 15, 2016, and then emailed to the plaintiff thirty minutes later.
Vice Chancellor’s Ruling
Vice Chancellor Slights stated: “After carefully reviewing the evidence, I conclude that Sara has carried her burden of proving that Hans had no authority to remove her as manager of the entities, to appoint himself as manager of the entities or to transfer membership units of one of the entities to an entity under his control.” Vice Chancellor Slights also concluded that “Hans has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, referencing the two agreements as “sham documents”. As a result, Vice Chancellor Slights also ordered the defendant to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.
So, what do you think? Does it seem like there are more cases than ever with potentially altered or forged ESI? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
“Master” Your Knowledge of eDiscovery With This Conference in San Francisco Later This Month: eDiscovery Trends
I’m delighted to be participating in The Master’s Conference series again this year. If you’re in the San Francisco area or plan to be there on April 25, join me and other legal technology experts and professionals at The Master’s Conference event for a full day of educational sessions covering a wide range of topics!
The Master’s Conference brings together leading experts and professionals from law firms, corporations and the bench to develop strategies, practices and resources for managing the information life cycle. This year’s San Francisco event covers topics ranging from technology evaluations to forces changing eDiscovery to mobile device and social media discovery. Cybersecurity and data science are covered too.
The event will be held at Bently Reserve, 301 Battery St, San Francisco, CA 94111. Registration begins at 8am, with sessions starting right after that, at 8:30am.
CloudNine will be sponsoring the session Data, Discovery, and Decisions: Extending Discovery From Collection To Creation at 1:45pm. I will be moderating a panel that includes Gordon J. Calhoun, Partner with Lewis Brisbois Bisgaard & Smith LLP, Jamie Raba, Attorney with Seyfarth Shaw LLP and Julia Romero Peter, General Counsel and Vice President of Sales with CloudNine.
Our panel discussion will discuss how big data is impacting today’s litigation landscape, the use of non-traditional tools and approaches and how more and more organizations are conducting “data discovery” pre-litigation. It should be a very informative discussion with a very knowledgeable panel! Hope you can join us!
Click here to register for the conference. If you’re a non-vendor, the cost is only $175 to attend for the full day (that cost goes up to $300 after next Tuesday, April 18).
This year, The Master’s Conference also has events scheduled for Chicago, Denver, New York City, London(!), Washington DC and Orlando. Click here for more information on remaining scheduled events for the year.
So, what do you think? Are you going to be in San Francisco on April 25? If so, come join us! And, as always, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Should Failing to Issue a Litigation Hold Be Considered Intent to Deprive?: eDiscovery Best Practices
A lot has been discussed about the most recent changes to the Federal Rules, especially with regard to Rule 37(e) and the requirement of the intent to deprive standard to apply more serious sanctions. But, what activities constitute intent to deprive? Should failing to issue a litigation hold be considered intent to deprive a party of potentially responsive ESI when that ESI is not preserved?
Rule 37(e)(2) says the following:
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
{emphasis added}
Since the rules – including 37(e) – were implemented in December 1, 2015, there have been several cases where a request for sanctions were not granted because the court ruled a lack of bad faith or intent to deprive. In one case, Nuvasive v. Madsen Medical, the court (in October 2015) had granted the defendants’ motion for adverse inference sanctions against the plaintiff for failure to preserve text messages from four employees suspected of secret coordination with the plaintiff. However, after the 2015 Rules changes were adopted, the plaintiff sought relief under Rule 60(b) based on the amendment to Rule 37(e). California Chief District Judge Barry Ted Moskowitz, having previously found the plaintiff did not intentionally fail to preserve the text messages, reversed the previous ruling and granted the plaintiff’s motion for an order vacating the Court’s previous order that granted the defendants’ Motion for Sanctions. So, the ruling changed as a result of the Rules changes.
Here are four other cases since the beginning of 2016 where sanctions were denied because of a lack of bad faith or intent to deprive. Of course, sanctions do still happen and they can still be severe — here are two cases with examples of severe sanctions.
In the Pension Committee case in 2010, New York District Court Judge Shira Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint and she stated: “[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Judge Scheindlin also noted that by July 2004, when the final relevant Zubulake opinion was issued, “the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.”
Granted, gross negligence and intent to deprive are not the same thing. But, it’s 2017 now, not 2010 (much less 2004). Given what most attorneys know today (or should know) about the requirement to issue a written litigation hold, should failure to do so be considered bad faith?
Not only that, but it’s possible to automate a good portion of the litigation hold issuance and tracking process, so it’s easier than ever to demonstrate due diligence in the litigation hold process. There’s less excuse than ever to manage an effective litigation hold and meet your duty to preserve.
So, what do you think? Should failing to issue a litigation hold be considered intent to deprive? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
The Last Word on LegalTech New York 2017: eDiscovery Trends
Since this blog was founded in 2010, we have certainly covered each LegalTech New York (LTNY) conference extensively, with (in most years) a pre-show look, coverage of eDiscovery related sessions each day, a post mortem set of observations from LTNY attendees and an annual thought leader interview series (this year was our seventh annual series). But, nobody covers the show quite like Andrew Haslam.
Andrew’s annual write-up on LTNY is as comprehensive a look at the show as you’ll find. This year, his write-up (cheekily titled Do you want AI with that?) is a ten page overview that covers everything from the theme of the show in his observation (which is reflected in the title of the write-up) to weather and travel (for Andrew, that is across the pond from Britain) to the venue to a host of (sometimes brutally frank) observations from participants (including yours truly) and Andrew’s own observations from meetings with various vendors at the show (including CloudNine). The title comes from his observation that “as in the fast food industry where ‘do you want fries with that?’ became a standard upsell to any order, so AI seems to be tacked on to every presentation (and a lot of demonstrations) at the event.”
Andrew’s report was a little later than usual this year as he now has a different “day job” as the UK eDisclosure Project Manager at Squire Patton Boggs and he notes that the opinions are his own and not those of his employer. I can relate as every post I write has that disclaimer paragraph at the bottom that you see. Regardless, Andrew’s LTNY write-up is always uniquely informative and entertaining and a great read.
A link to Andrew’s report can be found at Legal IT Insider here.
So, what do you think? Did you attend LTNY this year? If so, what did YOU think of the event? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
What Can Go Wrong, Will Go Wrong. Here’s What to Do About It: eDiscovery Trends
As I promised on Tuesday, here’s how you can find out how you can learn about several more “pitfalls” and “potholes” and how to avoid them.
If you’ve ever managed a discovery project for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” can (and will) occur that can derail your project. These issues can add considerable cost to your discovery effort through unexpected rework and also cause you to miss important deadlines or even incur the wrath of a judge for not following accepted rules and principles for discovery. Here’s a new webinar that will help you avoid many of these “pitfalls” and “potholes”.
On Thursday, April 27 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Pitfalls and Potholes to Avoid in Your eDiscovery Projects. This one hour webcast will discuss some of the most common “pitfalls” and “potholes” that you can encounter during the discovery life cycle from Information Governance to Production and how to address them to keep your discovery project on track. Examples of issues being discussed include:
- Avoiding the Mistake in Assuming that Discovery Begins When the Case is Filed
- How to Proactively Address Inadvertent Privilege Productions
- Up Front Planning to Reduce Review Costs
- How to Avoid Getting Stuck with a Bad Production from Opposing Counsel
- Understanding Your Data to Drive Discovery Decisions
- Minimizing Potential ESI Spoliation Opportunities
- Ways to Avoid Potential Data Breaches
- How to Avoid Processing Mistakes that Can Slow You Down
- Common Searching Mistakes and How to Avoid Them
- Techniques to Increase Review Efficiency and Effectiveness
- Checklist of Items to Ensure a Smooth and Accurate Production
I’ll be presenting the webcast with Karen DeSouza, Director of Review Services at CloudNine and we will discuss twenty different “pitfalls” and “potholes” that you can avoid to keep your project on track. To register for the webcast, click here. You may thank us later. :o) Hope you can attend!
So, what do you think? Have you encountered “pitfalls” or “potholes” in your discovery projects? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
What’s Changed and What’s Next for EDRM at Duke: eDiscovery Trends
As we’ve discussed (here, here and here), EDRM was recently acquired by Duke Law School’s Center for Judicial Studies. How will this new partnership change EDRM? Yesterday, EDRM and Duke Law conducted a webinar to discuss the future of EDRM at Duke, what’s changed and what’s next.
The webinar was conducted by George Socha, co-founder of EDRM (and now managing director in BDO’s Forensic Technology Services practice) and Jim Waldron, the new EDRM Director. Jim isn’t just new to EDRM, he’s new to Duke, having started February 1st after more than 30 years as Clerk of the US Bankruptcy Court in New Jersey and having served on the Judicial Conference Advisory Committee on Bankruptcy Rules since 2010.
Duke Law School’s Center for Judicial Studies is designed to bring together the bench, bar, academy, and other professionals to facilitate educational opportunities and develop practical resources, guides and other materials. In addition to EDRM, it includes The Duke Conference and Judicature, a quarterly journal publication for judges.
As for EDRM, some of the things that have changed as a result of the Duke acquisition include:
- New relationship with academy and judiciary that broadens EDRM’s reach and opportunities for collaboration;
- New audiences for EDRM materials;
- New team to support EDRM activities (as George noted, with Duke’s support, EDRM no longer has to be the “George and Tom show”);
- New focus with one major project per year to ensure deliverables;
- The opportunity to collaborate with The Duke Conference, which will start with the TAR project (this year’s major project) in September; and
- The opportunity to publish in Judicature.
Speaking of the TAR project, it’s already underway with three teams led by Mike Quartararo, of Stroock & Stroock & Lavan LLP; Gareth Evans, of Gibson Dunn; and Adam Strayer, of BDO Consulting. Those teams will meet at the EDRM annual workshop from May 15 to 17 in Durham. Email edrm@law.duke.edu if you’re interested in joining the project (to join, you have to be an EDRM member, click here for more information on how to join EDRM).
EDRM is also in the early stages of a project related to the General Data Protection Regulation (GDPR) and the impacts of it on cross border discovery and there will be a breakout session on that during the annual workshop as well.
Not everything has changed at EDRM. It will still be a member-driven organization, efforts on past projects will continue, and all of the models, publications and other materials that were available to the public will continue to be available.
EDRM will also be conducting a webinar, tentatively scheduled for later this month, on the new Security Audit Questionnaire rolled out last month. Sounds like business as usual at EDRM with plenty of activities happening post acquisition.
So, what do you think? Will the acquisition by Duke Law be a positive influence for EDRM? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Failing to Test Search Terms Before Agreeing to Them Can Be Costly: eDiscovery Best Practices
Here’s a big “pothole” that can derail your eDiscovery project. On Thursday, I’ll discuss how you can learn about several more “pitfalls” and “potholes” and how to avoid them.
As soon as litigation is anticipated, it’s a good idea to begin collecting potentially responsive data and assessing it by performing searches and testing the results. Because, if you wait until after the meet and confer with opposing counsel to do so, it can be expensive.
On the very first day we introduced eDiscovery Daily over 6 1/2 years ago, we published a post where we discussed the danger of using wildcards in your searches (and how they can retrieve vastly different results than you intended). I was providing search strategy assistance to a client that had already agreed upon over 200 search terms with opposing counsel. The attorneys had prepared these terms without assistance from a technology consultant (or “geek” if you prefer) – I was brought into the project after the terms were negotiated and agreed upon – and without testing any of the terms.
One of those searches related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”. As you know by now if you’ve been a reader of the blog since the beginning (or if you clicked on the link to that original post above), that one search retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min”. We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.
Since the terms had been agreed upon, opposing counsel was understandably resistant to modifying any of them. It wasn’t their problem that my client faced having to review all of these files – it was my client’s proposed term that they now wanted to modify. However, because we were able to demonstrate a clear indication that many of the retrieved documents in this search were non-responsive, we were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “minefield”, “minefields”, “miner” and “minings” (among other variations). That modified search reduced the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind” (because we were able to drop “mint” and “mind” and over 200 other words from the responsive hit list).
However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review tens of thousands of additional files (costing tens of thousands of dollars) that they wouldn’t have had to review if they had included a technical member on the team at the beginning and had they tested each of these searches before negotiating terms with opposing counsel. Doing so would have identified which terms were overbroad and would have led to determining more efficient search terms to propose, saving tens of thousands of dollars in review costs.
So, what do you think? Do you test your search terms before proposing them to opposing counsel? If not, why not? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
Court Denies Untimely Motion to Compel Production of Text Messages: eDiscovery Case Law
In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., No. 14-93 (E.D. Wisc., Mar. 6, 2017), Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.
Case Background
In April 2016, the plaintiffs and third-party defendants filed a motion, indicating that earlier in April 2016, the plaintiffs/third-party defendants had received from Stryker twenty-one text messages, all from a records custodian who had not been working for Stryker until after the filing of the lawsuit. Several days later, Stryker informed the plaintiffs/third-party defendants that it had not searched any of its other employees’ phones for relevant text messages. The movants indicated that, while Stryker never had objected to their discovery demands that Stryker produce such text messages, Stryker now was arguing that it would not produce the texts absent a court order.
Although Stryker had produced tens of thousands of pages over the course of discovery, the movants argued that the production format did not permit them to search for text messages. The movants also indicated that when asked for more information, Stryker ignored the requests and simply demanded responses to its own discovery requests. Finally, in April 2015, with trial looming, the movants “isolated the Stryker text issue” and Stryker first said it would look into the issue, but, according to the movants, then refused to review the texts of two key custodians to determine whether they had any responsive texts. The movants claimed that Stryker’s plan was to wait throughout the discovery period to produce the texts, then claim that the movants somehow had waived their right to expect them.
Stryker filed its response in May 2016, objecting that discovery had closed on November 16, 2015, and the movants hadn’t filed their motion to compel until five months later, and one month prior to the then-upcoming trial. Stryker argued that the movants did not even seek to meet and confer about the texts until April 2016, months after discovery closed.
Judge’s Ruling
Judge Pepper began her analysis by stating: “So. On December 31, 2014, the movants served on Stryker discovery demands requesting any kind of document containing any kind of information about a whole bunch of stuff. Lawyers experienced in these sorts of demands – as Stryker’s counsel are – certainly would have figured out that one electronic form of communication the movants might have been seeking would have been texts.” Judge Pepper also noted that, “[I]n response to these broad demands, Stryker – over the course of the next ten months – served tens of thousands of pages of discovery on the movants.”
As a result, Judge Pepper said the “The court will deny the motion to compel. As Stryker notes, the movants filed this motion almost six months after discovery had closed.” Judge Pepper also noted that the “discovery period was quite extensive”, with the movants filing their discovery demands December 31, 2014 and the scheduling order having set the discovery deadline for November 16, 2015 (not to mention nearly a year before during which a discovery deadline was not set by the previous judge assigned to the case). While she understood the movants’ explanation for why they did not file the motion until April 2016, Judge Pepper stated that “their failure to realize before the close of discovery that they could not search the discovery specifically for texts is not a basis for granting a late-filed motion to compel.”
So, what do you think? Should the motion have been denied or should the defendant Stryker have been held accountable for lack of cooperation on text messages before the deadline? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.