If you read a lot of e-discovery articles — and I know y’all do — you know that judges are quickly losing any patience for attorneys who don’t have their act together during e-discovery (or even regular old discovery).
I know that nothing about the process is simple or easy. I know e-discovery is expensive and time-consuming and involves complex computer programs that most people don’t understand. But seriously, everyone needs to hurry up and figure this stuff out.
Otherwise you might end up like the attorneys for the city of Washington, D.C., who got benchslapped so hard on Monday that they won’t be able to see straight for a week.
Read on to learn about what Chief Judge Royce Lamberth (D.D.C.) described as a discovery abuse “so extreme as to be literally unheard of”….
First, some background.
For several years, D.C. has been fighting a class action lawsuit that accuses it of failing to provide accessible preschool special education. The plaintiffs say the city violated the Individuals with Disabilities in Education Act and other federal and local laws. (The Blog of Legal Times explains the case’s wonky and still unresolved history in more detail.)
The case, DL v. District of Columbia, was set to go to trial on April 6. On the first day of trial, plaintiffs’ counsel complained that D.C.’s document production was still “flooding” into his office. He said he received thousands of emails just days before trial and that the defense planned to continue producing thousands of e-mails on a “rolling” basis even after the trial concluded.
Chief Judge Royce Lamberth ordered the defense to turn over all the as-yet unproduced emails ASAP, and he declared that they had now waived any objections (regarding privilege, etc.) about the electronically stored information.
D.C. appealed Lamberth’s order, and that’s when the case’s simmering discovery conflicts finally boiled over. From Lamberth’s May 9 ruling:
Imagine a standup comic who delivers the punch-lines of his jokes first, 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. That’s what document production after trial is like — it defeats the purpose.
D.C.’s attorneys tried to defend themselves by saying that they were understaffed, that “discovery was voluminous,” and that there simply were not enough bodies to process it all before trial.
No dice. Judge Lamberth continued:
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. It could have filed another motion for an extension of time or a status update to alert the Court to the issue. It could have said something at any of the multiple status conferences held in this case or at the pretrial conference.
Instead, the District failed to produce documents for over two years, violated multiple Court Orders in the process, and instead of informing the Court of the situation at any point along the way, it simply sprung the news on the first day of trial.
Any satisfaction Lamberth might have gotten from unloading on his litigants was probably stripped away by the fact this case has been dragging on for nearly three years. The D.C. attorneys have apparently been causing trouble the whole time, according to Judge Lamberth:
Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. … [I]t was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court.
Ouch. So, what do we learn from this bungle?
Don’t make excuses about your e-discovery problems. It won’t earn you a judge’s pity. It doesn’t matter if you are understaffed, underfunded, short on time or technologically illiterate. Just git-r-done!
And if you do encounter a problem, for God’s sake don’t keep it a secret. The only thing worse than realizing you might miss a document production or other discovery-related deadline is to not tell the court and then show up the day of and mumble “Oops!” (like Will Smith did in Independence Day). The judge’s reaction will be way less humorous than Jeff Goldblum’s.
I know this is already reaching TL;DR length, so I’ll finish by saying the 18-page opinion is worth reading. It’s not only full of zingers and righteous judicial rage — as well as citation to Judge Neil Gorsuch’s noteworthy opinion in Lee v. Max International, LLC (10th Cir.) — it’s also a good “What Not to Do” e-discovery guide.
Read it, go forth and do the opposite.
DL v. District of Columbia [U.S. District Court for the District of Columbia]
Judge Accuses D.C. of Discovery Violation ‘So Extreme As To Be Literally Unheard Of’
[The BLT: The Blog of Legal Times]
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.