November 28, 2018 Practice Points

Don’t Sit on Your Right to Enforce Discovery Obligations, or You May Lose the Remedy

By Andrew M. Toft

Delay always breeds danger; and to protract a great design is often to ruin it.
–Miguel de Cervantes

Tyll v. Stanley Black & Decker Life Ins. Program, et al., 2018WL5847240, (D. Conn. Nov. 8, 2018) is an example of procrastination resulting in a written opinion no lawyer wants to see. Particularly instructive is the court’s comprehensive construction of a timeline of filings in the case to support its ruling.

Tyll sought an order compelling one of the defendants to conduct further discovery and to produce a Rule 30(b)(6) witness. The court entered a scheduling order on January 26, 2018. On May 25, 2018, Tyll served the defendants with a request for deposition on June 5, 2018, three days before the discovery cutoff. On June 5, 2018, the defendants agreed to a discovery extension provided that the plaintiff drop the request for depositions and seek additional written discovery only. The parties filed a consent motion to modify the scheduling order, and on June 11, 2018, the court granted the motion and extended the discovery deadline to August 10, 2018. On August 13, the parties again moved to extend the discovery deadline, and the court granted the motion. On September 5, 2018, the parties informed the court of an unresolved discovery dispute that had been festering since the previous June 2018.

Discovery began about seven months before the discovery dispute was brought to the attention of the court. Shortly thereafter, the defendants had produced the primary documents responsive to discovery and relevant to the case. Tyll waited until days before the first discovery cutoff to claim that there were problems with what had been produced. The court extended the discovery cutoff twice without being informed of the brewing discovery dispute. Only shortly before expiration of the third discovery deadline did Tyll ask the court to compel one of the defendants to conduct new electronic discovery. The court detailed the discovery deadlines that had passed and itemized Tyll’s failures to raise the discovery issues with the court. Those failures resulted in Tyll’s motion to compel being denied. In a final volley, the court stated, “In any event, the Court finds Plaintiff’s electronic discovery request disproportionate and unrelated to the information Plaintiff seeks.”

Tyll’s lesson is not to delay in bringing a discovery dispute to the court’s attention. Lawyers are expected to confer and try to resolve disputes so that they are fully developed when brought to the attention of the court. Tyll highlights what can happen if counsel satisfy that expectation but fail to bring a bona fide dispute to the court’s attention in a timely manner. Do not let delay breed danger to your client’s case.

Andrew M. Toft is an attorney in Denver, Colorado.


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