August 28, 2018 Practice Points

Managing Discovery: Be Proactive or Risk Being Sorry

Parties should take the discovery process in their own hands because they may not like the result if they let the courts.

By Dorian Simmons

The onus for managing discovery ultimately falls on the litigating parties. While the courts provide guidance—by way of the Federal Rules of Civil Procedure (FRCP), scheduling and discovery orders, and status conferences—the parties themselves are inevitably responsible. In Murphy v. Piper, the plaintiffs moved to sanction the defendant for a document production that the plaintiffs characterized as a “document dump.” Civ. No. 16-2623 (DWF/BRT), 2018 U.S. Dist. LEXIS 131628 (D. Minn. Aug. 6, 2018). (The court disagreed with the plaintiffs’ characterization of the production as a document dump because the produced documents were responsive to the plaintiffs’ request.) The court denied the plaintiffs’ motion, suggesting that courts may not protect parties who fail to manage discovery proactively.

Rather than finding sanctionable conduct, the Murphy court found the plaintiffs at fault for requesting broad discovery without taking the necessary steps to manage the discovery process. The plaintiffs claimed that they were prejudiced when the defendant produced 169,000 documents weeks before the fact-depositions deadline. The court rejected the motion on both grounds relied upon by the plaintiffs. On the first ground, the plaintiffs argued for sanctions under Federal Rule of Civil Procedure 37(b)(2) claiming that the defendant violated the court’s scheduling order. The court quickly dismissed the plaintiffs’ argument, noting that the court order explicitly considered that documents could be produced after the date stated in the order. Further, the order did not contain a date by which the defendant was required to substantially complete production.

On the second ground, the plaintiffs claimed that the defendant violated the judicial process. The court disagreed, explaining that the plaintiffs should have been fully aware that the defendant would make a substantial production for a few reasons. First, the court noted that the defendant’s substantial production was a result of the plaintiffs’ broad discovery requests. Second, the plaintiffs should have realized that the volume of the defendant’s production would be high, especially given the defendant’s choice to produce business records pursuant to FRCP 33(d) rather than answer interrogatories in writing. Third, the defendant informed the plaintiffs that she would produce documents on a rolling basis including after the date specified in the court order.

Yet the court found that the plaintiffs did nothing to address or avoid the inevitable problems that arose. The plaintiffs could have inquired, at any time, about the total volume and timetable of the defendant’s rolling production. The plaintiffs could have also negotiated with the defendant to agree on a reasonable production deadline pursuant to the pretrial scheduling order that the plaintiffs claimed the defendant violated. Despite the tools at their disposal, the plaintiffs failed to be proactive in managing discovery. Further, the plaintiffs then sought relief without reviewing the defendant’s production to understand exactly how they were allegedly prejudiced.

The court’s decision illustrates that some courts will not relieve parties of their responsibility to engage fully in the discovery process. Clearly, this decision does not signal how every court will rule on discovery disputes, but it is a reminder for parties to take the discovery process in their own hands because they may not like the result if they let the courts.

 

Dorian Simmons is an associate with Weil, Gotshal & Manges LLP in New York, New York.


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