September 13, 2021 Practice Points

Discovery Disputes Don’t Keep

Counsel that delay raising discovery disputes with the court might find that they have waited too long.

By Andrew M. Toft

A recent case from the Southern District of New York highlights the importance of promptly raising discovery issues with the court. In Burszstein v. Best Buy Stores L.P. et al., No. 20-cv-0076 (S.D.N.Y. May 17, 2021), the plaintiff alleged that she was injured after tripping and falling over a raised piece of metal in a New York City Best Buy store.

On April 1, 2020, the plaintiff served her initial discovery requests. The Rule 26(f) scheduling order required discovery to be completed by August 1, 2020. On August 13, 2020, despite significant deficiencies in the defendant’s discovery responses that the plaintiff had not brought to the attention of the court, plaintiff’s counsel took a Rule 30(b)(6) deposition of Best Buy. The deponent was not prepared for all topics identified in the Rule 30(b)(6) notice but did state some facts favorable to the plaintiff. The plaintiff served further discovery after the deposition and got responses that were deficient. Not until four months later—December 23, 2020—did the plaintiff file a motion for sanctions. The court ruled on May 17, 2021, over 13 months after discovery was first served and over nine months after discovery was to have been completed. With wry understatement the court commented “To be sure, the instant dispute might have been resolved if Plaintiff filed a motion to compel earlier in the litigation.”

While the opinion provides a summary and discussion of Second Circuit Rule 37 jurisprudence, the end result is perplexing. Throughout the opinion, the court criticizes the defense (and to a certain degree, the plaintiff) for discovery misconduct, but the sanctions imposed seem minimal in comparison to the misconduct. For example, the magistrate judge described Best Buy’s conduct as a “paradigm of discovery abuse.” She also stated that Best Buy’s explanation for the deficiencies in its discovery responses “strain credulity.” The court went so far as to state, “Defendants misrepresent the nature of the documents they have produced” (emphasis added), after earlier pointing out that Best Buy represented that it did not have any video footage of the accident at issue (contrary to 30(b)(6) testimony) on the same day that Best Buy’s counsel also filed a status report representing he was trying to get the surveillance footage from his client. One section of the opinion was actually titled “Defendants’ Credibility.”

Such comments notwithstanding, and closely paraphrasing the opinion, while the court found that Best Buy should not be precluded from introducing any evidence, the plaintiff would be permitted to present evidence at trial regarding the spoliation of liability-related electronically stored information (ESI) and whether such ESI ever existed in the first place, to the extent that any such evidence exists. While the court imposed monetary sanctions, this seems a Pyrrhic victory after 13 months. Possibly the plaintiff’s delay in bringing the deficiencies in the defendants’ discovery responses, and indeed the defendants’ overall discovery conduct, to the court’s attention diminished the seriousness of the misconduct in the magistrate judge’s eyes.

The lesson here is that, if the opposing party or opposing counsel is being obstructive and uncommunicative, and disregards the rules of civil procedure, counsel bring these issues to the court’s attention sooner rather than later.

Andrew M. Toft

Andrew M. Toft is of counsel with Hoffman Nies Dave & Meyer LLP in Greenwood Village, Colorado.


Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).

Entity:
Topic: