Isn’t discovery fun?

You sometimes hear Biglaw litigators complain about courts not publishing enough opinions about discovery issues. Discovery (especially e-discovery) is such a major — and majorly expensive — part of the complex litigation in which large firms specialize, but there aren’t that many decisions on the books over such nuts-and-bolts issues as responsiveness, privilege, and work-product doctrines.

So it’s noteworthy that the Massachusetts Appeals Court just issued an opinion featuring extended discussion of the work-product doctrine. Some Boston Biglaw litigators will surely welcome the additional guidance on this subject.

But not all of Boston Biglaw will be pleased by this decision. Certainly not the major firm that could wind up getting hit with sanctions as a result….

On Friday, the Massachusetts Appeals Court issued its ruling in Cahaly v. Benistar Property Exchange Trust Co., Inc. In an opinion by Justice William Meade, the appeals court vacated the trial court’s denial of a motion for sanctions against Bingham McCutchen.

Oy. More bad news for Bingham. Can’t this firm catch a break?

We reached out to Bingham for comment. (Note that the partner who handled the matter for Bingham, John R. Snyder, is now at Nutter McClennen & Fish.) Here’s what Michael Keating, counsel to Bingham and to John Snyder, had to say:

We continue to believe that the trial court, which heard eight days of evidence, was correct in finding that John acted in good faith and with the proper legal basis for his decisions. It’s important to note here that the Appeals Court did not find that John acted in bad faith, but rather found that the trial court should have applied a different legal standard. We are confident that in further proceedings, John will once again be vindicated.

And there will be further proceedings. As stated in the appeals court’s opinion, even though “the judge’s ultimate finding that Snyder acted reasonably and in good faith in withholding critical documents as work product must be reassessed” under the correct legal standard, “reasonableness and good faith are determinations we leave to the fact finder, who is in a better position to assess the credibility of witnesses and to weigh the evidence.”

Some litigators get aggressive with claims of attorney-client privilege and work product, but these doctrines have their limits. Check out the Cahaly opinion via the link below for a cautionary tale.

UPDATE (4:40 p.m.): If you’re having trouble accessing the opinion through the direct link, try accessing it via this index page (click on Cahaly v. Benistar Property).

Cahaly v. Benistar Property Exchange Trust Co., Inc. [Massachusetts Appeals Court]
Court Revives Claims Against Bingham for Withholding Evidence [American Lawyer (sub. req.)]
Bingham May Be Sanctioned For Hiding Docs: Mass. Court [Law360 (sub. req.)]

Earlier: More Partner Departures At Bingham
What’s Going On At Bingham McCutchen?


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