Judge Facciola stands as one of the single most prolific Federal Magistrate Judges in the United States.
Once again, the bow tie wearing jurist eloquently laid down the law in Tadayon v. Greyhound Lines, Inc. The discovery order concluded with the following passage:
III. High Noon
As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.
Tadayon v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 78288, 15-17 (D.D.C. June 6, 2012).
What procedural history did the parties ride through for the Court to order a telephonic status conference every two weeks?
The Wild Bunch
There is an old cowboy quote that applies to lawyers and eDiscovery: Generally, you ain’t learnin’ nothing when your mouth’s a-jawin’.
The case involved patent infringement claims of wireless technology wrongfully being used on the Defendants’ busses. Both sides had dueling discovery motions.
The pro se Plaintiffs brought a motion to compel discovery responses after the Defendants at first produced paper and then ESI. The Court quickly held the motion to compel moot. Tadayon, at *2.
Unforgiven: Clawing Back Inadvertent Productions
The Defendants inadvertently produced privileged discovery that they “clawed back” pursuant to agreement. The Plaintiffs argued that any privilege was waived because of the Defendants’ “hurried negligence.” Tadayon, at *4.
The Plaintiffs’ argument failed, because the clawback agreement was not in any way conditioned. Id. As the court stated, “Since the right to clawback was not so conditioned, the agreement stands as written and defendant may recall the privileged documents, irrespective of whether or not its initial production was negligent.”
My Darling Clementine, Plaintiffs’ Sanctions Are Denied
When you’re throwin’ your weight around, be ready to have it thrown around by somebody else.
Unknown Cowboy Quote
The Plaintiffs sought sanctions and attorneys’ fees against the Defendant, which the Court denied. The Plaintiffs claimed that the Defendants did not timely respond to discovery requests. Moreover, the Plaintiffs alleged that the Defendants purposely delayed their production until they filed a motion to stay. Tadayon, at *4-5.
The Plaintiffs based their sanctions motion on the timing of communications with the Defendant, production history and the District Court’s original minute orders regarding the Plaintiffs’ discovery requests. Tadayon, at *4-5.
Judge Facciola’s analysis focused on the minute orders to determine if Rule 37 sanctions (attorneys’ fees) were warranted. The Court held sanctions were not warranted, because the minute orders applied to the Defendants’ obligations mandated by Rule 26 of the Federal Rules of Civil Procedure, not the obligations imposed by a prior court order, as required by Rule 37. Tadayon, at *7-8.
Even if sanctions had been warranted, an award of attorneys’ fees was not available to the Plaintiffs, because they were pro se litigants. Pursuant to the Rule 37 and case law, pro se plaintiffs’ time does not constitute “expenses incurred” for attorneys’ fees. Tadayon, at *9-11 (Please see the opinion for the detailed analysis of this issue).
The Court held that the Plaintiffs’ motion to compel was not “substantially justified” under Rule 37, because of the timing of the Defendants’ production and the filing of the motion. Tadayon, at *12.
Judge Facciola included a timeline of the Defendants production and the filing of the motion to compel. Tadayon, at *14. The Court outlined that the Defendants produced 45,417 pages of responsive discovery 10 days after the District Court’s minute order. Tadayon, at *15. The Defendants continued to supplement their production three times. On the date of the last production, the Plaintiffs filed their motion to compel. Id. As the Court explained:
[Pl]aintiffs filed their motion compel, even though by the time the document was filed, most of the discovery disputes had been rendered moot by the production of the electronic version of the documents as well as by plaintiffs’ development of their own database. Furthermore, at no point in time after the filing of plaintiffs’ motion to compel did they consider withdrawing it or modifying it even though they knew that most of the issues had been rendered moot.
Tadayon, at *15.
The Courted ordered the Plaintiffs to show cause why they should not be sanctioned with attorneys’ fees for the time the Defendants spent opposing the motion to compel. Tadayon, at *15.
Bow Tie Thoughts: Dances with ESI
eDiscovery should not be the gunfight at the O.K. Corral. Parties can reduce motion practice and move their cases forward by cooperating effectively during their Rule 26(f) meetings. I stress multiple meetings, because it is unlikely one conference will settle issues such as collection, search terms and production dates.
Cooperating at a meet and confer does not mean surrender. There are technical issues that must be addressed when discussing electronically stored information. According to Michael Arkfeld, some of these issues include:
Understanding Each Party’s IT System
Preservation of ESI
Agreed upon Computer Terminology (how do you define metadata, forms of production, etc)
ESI Types and Storage Media, Devices & Locations
Protecting Privileged ESI
Arkfeld’s Best Practices Guide for Electronic Discovery and Evidence (2010-2011), Appendix B, “Meet and Confer” Planning Guide.
There of course are many more issues that can go into great detail at a Rule 26(f) conference. However, these issues are better addressed with attorneys cooperating and not playing Billy the Kid.