10th Circuit, Benchslaps, Document Review, Federal Judges, Neil Gorsuch

Biglaw Litigators, Rejoice! A Circuit Court Opinion on a Discovery Dispute


Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

Judge Neil Gorsuch, of the Tenth Circuit.

The opinion was penned by Judge Neil M. Gorsuch — one of the brightest stars in the federal judicial firmament. As I wrote back in 2006:

Article III groupies, Judge Neil Gorsuch is one to watch. He’s brilliant, he’s young, and he’s incredibly well-connected. Look for him to rise through the ranks of Supreme Court feeder judges in the years to come — and, perhaps, to be nominated to the Court himself someday.

Judge Gorsuch, 43, is a member of the Elect, having clerked for not one but two Supreme Court justices: Justice Byron White, a fellow Coloradoan, and Justice Anthony Kennedy. And yet, despite a pedigree that also includes Columbia, Harvard Law, a Marshall Scholarship, a Sentelle clerkship, a partnership at super-elite Kellogg Huber, and a high-ranking Justice Department position, Judge Gorsuch today descended from on high to dirty his hands with a discovery dispute.

Check out his opinion in Lee v. Max International, LLC, which begins:

How many times can a litigant ignore his discovery obligations before his misconduct catches up with him? The plaintiffs in this case failed to produce documents in response to a discovery request. Then they proceeded to violate not one but two judicial orders compelling production of the requested materials.

After patiently affording the plaintiffs chance after chance, the district court eventually found the intransigence intolerable and dismissed the case as sanction. We affirm. Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.

Get used to that language. You’re going to see it every time a party to litigation blows through three chances to comply with discovery duties.

The opinion recites the facts and procedural history of the case — pretty dry stuff. Colorful writing doesn’t return until Judge Gorusch gets to the standard of review:

We view challenges to a district court’s discovery sanctions order with a gimlet eye.

So, “gimlet eye review” — where does that fall on the spectrum? It’s definitely not de novo. Maybe abuse-of-discretion-plus?

(We give His Honor credit for adding a touch of fun to standard of review. The standard of review can decide cases, as our very own Mark Herrmann has observed, but it’s not the most thrilling topic ever.)

Why are district and magistrate judges entitled to deference in the discovery arena? Judge Gorsuch explains:

The district court’s active participation in the discovery motions practice affords it a superior position than we — with but a cold record to review — for deciding what sanction best fits the discovery “crime,” both as a matter of justice in the individual case and “to deter [others] who might be tempted to [similar] conduct.” [Citation omitted.]

Discovery disputes are, for better or worse, the daily bread of magistrate and district judges in the age of the disappearing trial.

For worse, definitely for worse. If discovery disputes are my daily bread, I’d like copious amounts of butter and jam, please.

Why are sanctions, including dismissal of a case, appropriate for repeated refusals to comply with court-ordered discovery? The integrity of the system must be preserved and incentives must be properly aligned, according to Judge Gorsuch:

When a party feels at liberty to disobey not just a discovery request but two court orders compelling production of the same material in its control, weeks or months (as in this case) pass without progress in the litigation. Hours, days, weeks of lawyers’ time are consumed at great expense. Focus shifts from the merits to the collateral and needless. This is not speedy, inexpensive, or just. Just the opposite. And no doubt tolerating such behavior would encourage only more of it. But there is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations.

Discovery karma? What a great concept! It’s a coinage that belongs in Urban Dictionary.

(Alas, expect every litigatrix out there to believe that she has good discovery karma and her opponent has bad discovery karma. It’s reminiscent of how 90 percent of incoming law students expect to wind up in the top 10 percent after 1L year.)

Judge Gorsuch then turns to benchslapping the plaintiffs, shooting down all of their attempts to excuse their conduct. This passage is particularly delicious:

Discovery is not supposed to be a shell game, where the hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered. Perhaps the district court could’ve exercised its discretion to allow the case to proceed despite the false declaration and the plaintiffs’ repeated noncompliance. But it certainly did not err in finding that its January 2010 order was violated.

How do you like them apples? Expect to see that language quoted again and again, in the near and not-so-near future.

(Note Judge Gorsuch’s use of contractions throughout his opinion. E.g., “could’ve exercised its discretion.” Word on the street is that Judge Gorsuch has his law clerks add contractions to his opinions, to make himself sound more folksy — and therefore more appealing as a possible SCOTUS nominee. Adding contractions to an opinion after the fact, as opposed to deploying them organically, seems a bit silly — but it’s a small price to pay for being fed by Judge Gorsuch, an emerging feeder judge, into the maw of a Supreme Court justice.)

All in all, this is quite the opinion. You can read it in full here — and you might as well do so now, because it’s going to be cited a great many times in years to come.

[FN1] Thank God for Judge Shira Scheindlin (S.D.N.Y.). Her Honor isn’t known as Miss Congeniality — there’s a reason people keep thinking that she’s related to Judge Judy, aka Judith Sheindlin (she’s not, note the different spelling of their last names) — but she is one of the few Article III judges who is willing to write about discovery issues. See, e.g., Zubulake v. UBS Warburg.

Markyl Lee v. Max International, LLC [U.S. Court of Appeals for the Tenth Circuit]

(hidden for your protection)

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