The Dangers of Dilatory Discovery
April 08, 2015
In Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2014 WL 6908867 (W.D.N.Y. Dec. 9, 2014), discovery in the breach of contract case was contentious, protracted and resulted in a multiple motions to compel, the first of which the court granted in favor of the defendant. At that time, the court warned the plaintiff “not to engage in piecemeal production of materials it has located that are responsive to Optimum Energy’s unobjectionable requests.” Not heeding the Court’s warning, Plaintiff subsequently produced documents on nine separate occasions. At that time, Defendant learned, for the first time, of a “five-step development process,” that it believed was highly relevant to its claims in the case, and which caused it to believe that the plaintiff was withholding relevant documents from production. Accordingly, Defendant filed a second motion to compel and sought sanctions for Plaintiff’s discovery behavior, including its delayed production of relevant information.
The court granted in part Defendant’s second motion to compel and, in light of Plaintiff’s continued piecemeal production coupled with other discovery failures, fashioned a “new and simpler approach” to discovery, including the identification of 13 search terms/phrases to be utilized when searching “ALL [of Plaintiff’s] corporate documents, files, communications, and recordings. . .” The court also ordered the plaintiff and all counsel of record to file a sworn statement confirming its “good-faith effort to identify sources of documents; that a complete search of those sources for each of the [identified] phrases occurred; and that the search results [were] furnished to [Defendant].”
In deciding the motion, the Court expressed its frustration with “the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.” The court also noted that despite the bickering between parties, neither had ever filed a motion for a protective order “[n]or ha[d] any party foregone passive-aggressive snarking and filed a formal motion under Rule 11 or 28 U.S.C. § 1927 to complain about material misrepresentations in motion papers.” “Instead,” the court continued, “the parties would prefer that the Court forget what the actual claims are in this case and start obsessing over details . . .”
Reasoning that “[a] lawsuit is supposed to be a search for the truth, and the tools employed in that search are the rules of discovery,” that “[o]ur adversary system relies in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and their judicial business honestly” and noting that “Rule 37 helps enforce proper conduct,” the court indicated it would “fashion a new and simpler approach to discovery that keeps the core of Optimum’s counterclaims in mind.” The court went on to state that it had “noticed” “[i]n the various discovery documents attached to the motion papers” that “certain phrases appear that inevitably refer to or hint at [the at-issue technology]” and that the phrases “open the door to a more objective discovery process that leaves Armstrong no room for gamesmanship.” Thus, after identifying the terms/phrases specifically, the court ordered:
For a period starting from January 1, 2004 through the present time, Armstrong must search ALL corporate documents, files, communications, and recordings for EACH of the above phrases. Armstrong will maintain a list of every server, computer, file room, or other place searched, and a list of all positive search results. For each positive result, Armstrong will procure a full copy of the document in question. Armstrong also will furnish a complete and sworn description of its document retention policies, if any, from January 1, 2004 through the present time. In the specific instance of [REDACTED] reports, if for any reason a product did not have a written report for a certain stage or did not go through all five stages then someone at Armstrong with appropriate knowledge or expertise will provide a sworn statement explaining why. When the search is complete, a representative of Armstrong and all of Armstrong’s counsel of record will file a sworn statement confirming that Armstrong made a good-faith effort to identify sources of documents; that a complete search of those sources for each of the above phrases occurred; and that the search results have been furnished to Optimum. All of this must occur on or before April 1, 2015, with absolutely no exceptions or extensions. Failure to comply will lead to sanctions under Rule 37(b)(2)(A).
The court also warned Defendant that it would not hesitate to impose the same approach on its discovery and ordered that counsel of record file, by a date certain, a sworn statement that all discovery requests had been fulfilled, or a motion for a protective order.
In light of this judicial reminder that courts favor a collaborative and efficient resolution of matters, and that Judges can, and will impose sanctions for egregious discovery violations, counsel should take seriously their obligations to be cooperative, diligent and timely during the discovery process irrespective of the courthouse in which we practice.