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In Even the Most Difficult Discovery Situations, Remember: Frame the Issue and Make Your Record

Geoffrey Kearney


  • Different jurisdictions have different local rules and customs.
  • While having to prevail on appeal to obtain relief that you clearly should have received at the district court level is never ideal, sometimes it is the only real way forward.
  • Define your issue and the avenue(s) that you wish to take.
In Even the Most Difficult Discovery Situations, Remember: Frame the Issue and Make Your Record
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For all of its rewards, litigation can be difficult and unpredictable. This certainly holds true for the discovery stage, where the potential challenges are legion. An opposing party that digs in its heels. Fact witnesses who, when deposed, provide unexpected, harmful testimony. Clients who blanch at the bill as expenses mount. And, of course, there is the possibility of a difficult trial judge presiding over your case—that perhaps most implacable of problems. Bailey v. KS Management Services, L.L.C. provides a good example of how to deal with that challenge in a way that sets up your case for a winning appeal. 2022 WL 16728 (5th Cir. May 26, 2022).

Case Background

Dana Bailey was hired as a nurse with KS Management Services, L.L.C. (KSM) in March 2014. She was promoted to a nurse coordinator position in 2016. She relinquished that role in 2018 and returned to work as a nurse. She was terminated in March 2019.

On January 7, 2020, she filed a suit under the Age Discrimination in Employment Act (ADEA) in the U.S. District Court for the Southern District of Texas. Her claims centered around her demotion from nurse coordinator—which, despite the ostensibly voluntary nature of the position, she characterized as a constructive discharge—and ultimate termination. She alleged both age discrimination and retaliation resulting from her complaints about that discrimination.

The case was assigned to Judge Lynn Hughes.

Discovery Restrictions

The first order that the court entered was a January 8, 2020, order setting a pretrial conference. This order specifically barred the service of written discovery or taking of a deposition without court approval. Two days later, the court entered an order for disclosure setting forth a mandated, streamlined discovery process. The pertinent components, as set forth in the opinion, were as follows:

The order requires the company to furnish certain information (e.g., the worker’s emails), and it requires the worker to furnish certain other information (e.g., a list of others who can corroborate the worker’s allegations of mistreatment). The order concludes:

3. The company and worker will file a joint chronology from the time the worker applied to work until he left or sued. This will include only significant events given in an objective, factual form; legal posturing, abstractions, and quibbling will be crushed.

4. The parties may not delay exchanging this information, even by agreement. If a particular in this order does not fit your case, make similar disclosures that reasonably fit your issues.

Id. at *1 (emphasis in original). The parties took the measures mandated by the order. (Though this is not mentioned in the appellate opinion, the district court docket sheet reflects that Bailey also filed discovery requests directed to the defendant at some point. Though KSM did supplement its “Disclosures,” it never provided responses to Bailey’s discovery requests.)

Following the initial pretrial conference, held on September 10, the court entered an order setting a motion for summary judgment (MSJ) briefing schedule. The deadline for the defendant’s motion was set for September 16, and the plaintiff’s response was given a due date of October 2. The order made no provision for any discovery other than that set forth in the order for disclosure.

The next day, Bailey, the plaintiff, filed a motion to extend the MSJ deadline to allow her to conduct discovery. Though the motion was unopposed, the court nonetheless denied it. Bailey then filed another motion seeking an opportunity to take discovery. This time, the vehicle was a Federal Rule of Civil Procedure 56(d) motion seeking either deferred consideration or denial of KSM’s MSJ. The court declined to expressly rule on the Rule 56(d) motion; instead, it entered a discovery order setting forth the following: “First, the court ordered there would be ‘no further discovery until Dana Bailey is deposed by October 15, 2020.’ Second, the court said it would consider other discovery requests—but only after Bailey’s deposition. Third, the court suspended the deadline for Bailey to respond to KSM’s summary-judgment motion.” Id. at *2 (emphasis in original).

KSM did not depose the plaintiff within the period set forth by the court. Still, Bailey filed a motion requesting leave to depose three witnesses. The court denied the motion and set an October 30 deadline for her to respond to KSM’s MSJ.

Bailey filed a supplement to her Rule 56(d) motion on October 27. The motion was again denied. Following a timely MSJ response filed without the benefit of further discovery, the court granted KSM’s motion and entered judgment in its favor.

Bailey appealed.

The Appeal

The central issue on appeal was whether the district court erred in denying the Rule 56(d) motions. The appellate court described the standard for such a motion: “To win relief, the Rule 56(d) movant must make two showings. She first must show (A) that additional discovery will create a genuine issue of material fact. Then she must show (B) that she diligently pursued discovery.” Id. (internal citations and quotations omitted). The first element is satisfied by the identification of even a “single piece of evidence that would likely create a material fact issue.” Id. (citing Smith v. Reg’l Transit Auth., 827 F.3d 412, 422–23 (5th Cir. 2016)).

The Utility of Additional Discovery

On the age discrimination claim based on Bailey’s stepping down from the nurse coordinator position, the court noted that the parties disagreed on whether her job was subsequently given to someone outside of her protected class. Appellant Bailey asserted that her job was split between two younger employees; appellee KSM claimed that these employees stepped in to temporarily assist with some low-bore aspects of the job and that the eventual true replacement was, like Bailey, an employee above the ADEA age threshold.

The panel identified several categories of evidence sought by but denied to Bailey that were potentially relevant to this fact issue. Specifically, both KMS business records and the deposition testimony of the KSM employee who supplied the declaration setting forth KSM’s version of events on personnel developments after Bailey’s departure as nurse coordinator were determined to be discovery that might have created a genuine issue of material fact. On the ultimate termination claim, the court held that comparator evidence sought by the plaintiff had the potential to undercut the conclusion that the appellant’s termination was for legitimate, nondiscriminatory reasons.

With respect to retaliation, the court identified the issue as the inability to depose a supervisor who, Bailey claimed, fabricated allegations of poor performance or to obtain correspondence regarding these alleged incidents. The court ruled, “It was an abuse of discretion for the district court to deny Bailey the opportunity to conduct discovery on this issue, and then fault her for having ‘no evidence of a causal connection’ between her protected activity and the adverse employment actions.” Id. at *4 (citation omitted).


The court of appeals was more than satisfied that Bailey had diligently pursued discovery, noting that “Bailey’s repeated requests for court permission to conduct discovery show anything but a lack of diligence,” and that “Bailey had no opportunity to conduct discovery absent court approval. She promptly and repeatedly sought such approval. That her requests were repeatedly denied does not reveal a lack of diligence on her part.” Id. at *5.

Based on the analysis above, the court reversed and remanded.

Practice Pointers

Different jurisdictions have different local rules and customs. As most attorneys reading this have experienced firsthand, ways of doing things become even more particularized when you get down to individual chambers. Still, in modern practice, it is unlikely that many of us have experienced a judge who literally will not allow the parties to serve discovery requests without leave of the court (and, to make matters more difficult, a situation where jealously guards that permission). Yet, despite the extreme circumstances, this case actually has a lesson to impart to practitioners.

Occasionally, you might come across a judge who, for whatever reason, appears outright hostile to your case. The task of a litigator faced with such an obstacle is to try to figure out a way around it. It is not enough to simply fume over how unfair things appear to be. Rather, you need to ascertain what you can do to make it most likely that you can convince a court that it has essentially no choice but to rule with you. For efficiency’s sake, as well as, most importantly, your client’s sake, the hope is that this happens at the trial court level. But sometimes there is no relief until you reach the appellate court level.

While having to prevail on appeal to obtain relief that you clearly should have received at the district court level is never ideal, sometimes it is the only real way forward. To ensure that one loss does not turn into two, do everything you can to provide the appellate court with a full, solid record with which to work. Take the trial court’s action and make it into a judicable, clearly meaningful issue on appeal. The appellant’s trial counsel ensured that the issue on appeal was not merely “The district court’s discovery order runs afoul of the Rules” but, instead, “The denial of our various requests for the opportunity to obtain discovery, namely our Rule 56(d) motions, prevented us from being able to show a material fact issue on these specific points in these specific ways.” That is a much easier, clearer sell for appellate courts, which generally prefer to correct discrete legal errors than to make sweeping pronouncements or critiques of lower-court judges.

The next time you are faced with what seems like a truly insurmountable judicial obstacle, after taking the requisite time to confirm with a colleague that the situation really is that bizarre—even lawyers need to vent!—set about working out how you will fix it. Check the relevant rules to see which motion(s) you should file. Look at appellate decisions on the relevant issues to make sure that you are not missing anything. Look at your case and be able to clearly articulate how the court’s action is prejudicing it. Define your issue and the avenue(s) that you wish to take, making sure that, insofar as is possible, what you have put before the trial court is the record you would like an appellate court reviewing the matter to have before it.

From there, it is hopefully just a matter of waiting until you receive the favorable decision from the appellate court—and, hopefully, a smoother ride on remand.