For Discovery Violation of “Exotic Magnitude”, Court Denies Reconsideration of Order Compelling Production and Finding that Objections were Waived

DL v. District of Columbia, No. 05-1437 (RCL), 2011 WL 1770468 (D.D.C. May 9, 2011)

Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial.  Defendants moved for reconsideration.  Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.

On the first day of trial, when the plaintiff class had been waiting “more than six years” for resolution, plaintiffs’ counsel revealed that his office had received “thousands of e-mails just days before trial” and that the District had indicated its intention to continue producing throughout and even following trial.  When asked to explain, defense counsel indicated that a “supplemental search” had unearthed “tens of thousands of e-mails that had to be reviewed for relevance and privilege” and that she had not informed the court because the District “did not know it was going to fail to complete the review process.”  She further indicated that the District was “understaffed” that “discovery was voluminous” and that “there simply were not enough bodies to process it all before trial.”  The court took issue, particularly where many of the emails were more than two years old, and ordered production of all emails within one week of the close of trial.  In doing so, the court reasoned that the deadline “would make any motion by plaintiffs to reopen the trial record to include newly introduced evidence more timely.”  The court also held that any objections, including privileges, had been waived, reasoning that “litigating privileges and objections post-trial would … unreasonably delay any possible efforts by plaintiffs to reopen the trial record.”  Defendants moved for reconsideration.

In its discussion of defendants’ motion, the court revealed that more than merely being very late, the District’s production was in violation of two court orders and, “most appalling,” was in violation of the Rule 26(e) duty to supplement.  The discussion further revealed the court’s objection to the District’s “‘rolling production’ scheme” which one of the previous orders sought to end.

Having identified the “bare discovery violations,” the court went on to identify its other reasons for its order.  First, the court reasoned, “the District ha[d] no excuse for its behavior in this case:”

It knew of its discovery obligations, and it knew how to file a motion for extension of time. This Court granted nearly every such motion it saw in this case, and there were many.  If at any point the District realized that it was behind, or for any other reason could not comply with this Court’s Orders, it should have informed the Court of the problem . . . The District’s complaints of lack of resources and time pressure fall on deaf ears because it failed to seek relief through any of the Rule-based mechanisms discussed above.  Accordingly, it is without excuse.

The court went on to explain its desire to specifically deter the District’s future misbehavior and “to generally deter other parties from doing the same thing” and that there was “no practical alternative short of entering a default in the case,” particularly where, absent a finding of waiver, there was danger of significant delay to allow for the documents to be reviewed.

The court rejected the District’s assertions of good-faith:

The Rules require more than simply making a good-faith effort to produce documents.  They require adherence to a very precise framework for navigating the discovery process.  Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic.  Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery—discovery would devolve into pure bedlam.  Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process.  A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

The court also rejected the District’s assertions that plaintiffs were not prejudiced by post-trial production where the District’s delay “likely left plaintiffs with a compromised trial strategy”, “unfairly limited” cross examination of defendants’ witnesses, and “resulted in increased costs and unnecessary delays.”  Additionally, the court dismissed accusations that plaintiffs had committed their own discovery violations, noting that such an argument was “a prime example of the lesson many learn as children:  When you point the finger at another, three point back at you.”  Defendants’ Motion for Reconsideration was denied.