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Litigation News

Litigation News | 2022

Immovable Order Meets Irresistible Appeal

Grant Hackley


  • Plaintiff's lack of depositions and documents led to summary judgment in an age discrimination case. Appeal reversed the judgment after proving efforts to obtain necessary evidence.
  • Attorneys must explain their discovery needs, reasons, and create a record for potential appeals when facing challenges in obtaining evidence.
  • Address discovery issues early, collaborate on a discovery schedule, and provide a factual basis for specific requests when presenting them to the court.
Immovable Order Meets Irresistible Appeal
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No depositions and no documents meant summary judgment against a plaintiff in an age discrimination and retaliation case, after the trial judge repeatedly stymied all attempts to obtain discovery. With persistence, the plaintiff was able to reverse that summary judgment on appeal after proving up her frustrated efforts to try to get the evidence she needed. ABA Litigation Section leaders say that attorneys facing challenges in obtaining necessary discovery must be prepared to explain to the court what they need from an opponent, why they need it, and to make a record for appeal.

An Age Discrimination Dispute

In Bailey v. KS Management Services, LLC, the plaintiff sued under the Age Discrimination in Employment Act for age discrimination and retaliation. The day after she filed suit, the U.S. District Court for the Southern District of Texas entered an order requiring the parties to furnish specified documents and information, and to file a joint chronology of all events relating to the plaintiff’s employment. The order further stated that “legal posturing, abstractions, and quibbling … will be crushed” and that no additional discovery would be permitted without court approval.

The district court then conducted the initial pretrial conference and ordered the defendant to file a motion for summary judgment, with all briefing to be completed within the following three weeks. The plaintiff filed a motion to extend the time to respond, along with multiple motions under Federal Rule of Civil Procedure 56(d) to defer consideration of summary judgment and to conduct discovery. The district court denied all of these motions and granted summary judgment in favor of the defendant. The plaintiff appealed.

The Fifth Circuit Court of Appeals reversed, noting that this was the third time it had reversed the same district court due to a similarly restrictive discovery order. The appellate court characterized the trial court’s order limiting discovery as “purport[ing] to create a one-size fits all system of rough justice.” It also held that the plaintiff acted diligently in seeking additional discovery and that the discovery she sought could create a genuine issue of material fact. The court declined the plaintiff’s request to assign her case to a different district court upon remand but expressed confidence that “the district court will heed the Federal Rules and the mandates of our precedent.”

A Surprise Order?

Every case has discovery issues. In fact, discovery issues should be considered “as soon as the complaint is received,” advises Michelle Molinaro Burke, Florham Park, NJ, former cochair of the Litigation Section’s Products Liability Litigation Committee. “Particularly in complex litigation, attorneys on both sides of the ‘v’ should be prepared to proactively work together to design a discovery schedule and carve out the type and nature of the discovery that is to take place,” Burke notes. “Certainly, there must be some give and take, but in the end, it is probably better to operate under a known set of rules, rather than risk an adverse ruling on a critical discovery issue,” she suggests.

This case may be an outlier. “The trial judge’s actions here benefitted the defendant because they limited the plaintiff’s ability to get the proof on the issues where she bore the burden,” notes Joseph V. Schaeffer, Pittsburgh, PA, cochair of the Section’s Pretrial Practice & Discovery Committee. “You don’t necessarily expect an order like this,” he continues, noting that “if you look at the case in isolation, you might consider that this particular judge was trying a creative approach to managing his docket.” Nevertheless, “there’s not enough in the record to know whether it was a case management strategy or hostility toward a particular type of claim,” he opines.

Getting What You Need

Preparation is critical when attorneys find themselves in the position of asking a court for discovery. “Let’s assume you are going in front of a judge, you’ve done your homework, you know the judge’s reputation, and you know what he or she wants,” illustrates Ronald Hedges, New York, NY, former cochair of the Section’s Pretrial Practice & Discovery Committee. “Go in front of the judge with whatever proofs you need, so that you can lay out the discovery you want,” he recommends, suggesting the use of affidavits or declarations to create a record that can be scrutinized if an appeal is necessary.

“A party needs a factual basis for a specific discovery request when the adversary contests the request and the parties go before the judge,” adds Hedges. “Just because something is discoverable is not enough,” he notes. Further, Hedges points to the proportionality requirement imposed by the 2015 amendments to Rule 26(b)(1) of the Federal Rules of Civil Procedure. “Be prepared to discuss proportionality and be prepared to lay a factual basis for the proportionality of the discovery you’re seeking or resisting. And that requires facts too,” he notes.

“If the attorneys here had just thrown up their hands and said, ‘this is impossible,’ then I think the outcome at the Fifth Circuit might have been quite different,” says Schaeffer. “But even when you might think that the judge is biased or unreasonable, you have to act within the confines of what you’re permitted to do,” notes Schaeffer. “Frankly, you do what the plaintiff did here, and you make your record,” he advises. “As much as from what was said as what was not said in the appellate opinion,” Schaeffer infers, “they did that respectfully and made their record so it would go up on appeal.”


  • Hon. Sidney Schenkier (Ret.), “Discovery Mud Fights: Why They Happen and How to Avoid Them,” Litig. J. (Oct. 4, 2021).
  • Erin Rhinehart and Len Niehoff, “Are We There Yet? Discovery for the New Litigator,” Litig. J. (Oct. 4, 2021).
  • Kelso L. Anderson, “Judicial Bias May Implicate Lawyer’s Ethical Obligations,” Litigation News (Feb. 24, 2020).
  • Michael J. Miles, “Proportionality under Amended Rule 26(b)(1): A New Mindset,” Pretrial Practice & Discovery (May 18, 2016).