Mancia v. Mayflower Textile Servs. Co., Case No. 08-273 (D. Md. October 15, 2008)
Magistrate Judge Paul Grimm strikes again. Judge Grimm authored Victor Stanley, discussed here, and Hopson, discussed here, which are even now reshaping search and retrieval practice and protection from inadvertent disclosure of privileged material in e-discovery, as well as Lorraine v. Markel American Insurance, discussed here and in several other posts, in which he expounds on all manner of issues relating to authentication and admissibility of ESI. Now, in his latest opinion, he directly confronts discovery abuses arising out of overbroad and burdensome discovery requests, boiler plate objections, and the failure of counsel to engage in cooperation and communication regarding the scope and timing of discovery. The opinion is an important one, particularly in light of the Judge’s extraordinarily high profile in the discovery arena.
Judge Grimm begins with an analysis of Rule 26(g), Fed. R. Civ. P., the rule that requires that a signature of counsel accompany every discovery request, response and objection. He characterizes the rule as one of the most important, “but apparently least understood or followed, of the discovery rules.”
The signature “certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry,” the disclosure is complete and correct, and that the discovery request, response or objection is: (a) consistent with the rules of procedure and warranted by existing law (or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law); (b) is not interposed for any improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); and (c) is neither unreasonable nor unduly burdensome or expensive, (considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action).
Slip Opinion at 7-8 (emphasis in original). He follows this with a reference to the Advisory Committee Notes, which “significantly flesh [the Rule] out”:
Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection....
Slip Opinion at 8 (emphasis in original). In sum, the Rule “simply requires that the attorney make a reasonable inquiry into the factual basis of his response, request, or objection.”
The Judge bases his demand for cooperative discovery on the affirmative duties underlying Rule 26(g):
First, the rule is intended to impose an “affirmative duty” on counsel to behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent “with the spirit and purposes” of the discovery rules, which are contained in Rules 26 through 37. Id. It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.
Slip Opinion at 9-10. He notes that the Rule comes fully armed with a requirement that violators be sanctioned. “[T]he rule is intended to curb discovery abuse by requiring the court to impose sanctions if it is violated, absent “substantial justification,” and those sanctions are intended to both penalize the noncompliant lawyer or unrepresented client, and to deter others from noncompliance.”
He then ties the Rule’s passage to the aspiration to “eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party,” and “the equally abusive practice of objecting to discovery requests reflexively – but not reflectively – and without a factual basis.” The Judge goes so far as to explicitly characterize boilerplate objections as “prima facie evidence of a Rule 26(g) violation, because if the lawyer had paused, made a reasonable inquiry, and discovered facts that demonstrated the burdensomeness or excessive cost of the discovery request, he or she should have disclosed them in the objection, as both Rule 33 and 34 responses must state objections with particularity, on pain of waiver.”
The Judge painstakingly names the numerous surveys, commentaries, and Law Review articles that have criticized the cost of discovery in recent days, and then relates it back to the very same criticisms that were leveled when the Civil Justice Reform Act of 1990, 28 U.S.C. §§ 471 et seq., was passed. According to the Judge, little has changed, despite concerted efforts to do so.
The Judge goes on to reject the defendants’ boiler plate objections to discovery requests as nothing more than waivers:
Rule 33(b)(4) requires that “the grounds for objecting to an interrogatory must be stated with specificity” and cautions that “any ground not stated in a timely objection is waived, unless the court, for good cause, excuses the failure”; therefore, the boilerplate objection to Plaintiffs' interrogatory waived any legitimate objection Defendant Argo may have had. The same is true for the boilerplate objections to Plaintiffs' document production requests. The failure to particularize these objections as required leads to one of two conclusions: either the Defendants lacked a factual basis to make the objections that they did, which would violate Rule 26(g), or they complied with Rule 26(g), made a reasonable inquiry before answering and discovered facts that would support a legitimate objection, but they were waived for failure to specify them as required. Neither alternative helps the Defendants' position, and either would justify a ruling requiring that the Defendants provide the requested discovery regardless of cost or burden, because proper grounds for objecting have not been established.
Slip Opinion at 25-26 (citations omitted).
His dealing with the actual discovery requests, however, is a bit more complicated. He notes that Rule 26(b)(2)(C) requires a court, sua sponte, to limit discovery if it determines that any of the conditions set forth in that Rule are present. The record, does not provide him with enough information to make a determination of overbreadth or burden. Therefore, he ordered counsel to meet and confer on the following:
- First, I asked Plaintiffs and Defendants each to estimate the likely range of provable damages that foreseeably could be awarded if Plaintiffs prevail at trial. In doing so, I suggested that the Plaintiffs assume for purposes of this analysis that their pending motion to certify a FLSA collective action would be granted, because doing so would allow the parties to gauge the “worst case” outcome Defendants could face. I then ordered that counsel for Plaintiffs and Defendants compare these estimates and attempt to identify a foreseeable range of damages, from zero if Plaintiffs do not prevail, to the largest award they likely could prove if they succeed. I also asked Plaintiffs' counsel to estimate their attorneys' fees. While admittedly a rough estimate, this range is useful for determining what the “amount in controversy” is in the case, and what is “at stake” for purposes of Rule 26(b)(2)(C)'s proportionality analysis. The goal is to attempt to quantify a workable “discovery budget” that is proportional to what is at issue in the case.
- Second, I ordered Plaintiffs' counsel and Defendants' counsel to discuss the amount and type of discovery already provided, and then discuss the additional discovery still sought by Plaintiffs, in order to evaluate the Rule 26(b)(2)(C) factors, to determine whether Plaintiffs' legitimate additional discovery needs could be fulfilled from non-duplicative, more convenient, less burdensome, or less expensive sources than those currently sought by the Plaintiffs. I further instructed Defendants' counsel that during this portion of the discussion, the burden was on the Defendants to provide a particularized factual basis to support any claims of excessive burden or expense.
- I then advised counsel that in their discussion they should attempt to reach an agreement, in full or at least partially, about what additional discovery (and from what sources) should be provided by Defendants to Plaintiffs. In doing so, I suggested that they consider “phased discovery,” so that the most promising, but least burdensome or expensive sources of information could be produced initially, which would enable Plaintiffs to reevaluate their needs depending on the information already provided.
- Finally, I advised counsel that when they had completed their discussion, they were to provide me with a status report identifying any unresolved issues, and if there were any, I gave them a format to use to present them to me in a fashion that would enable me to rule on them expeditiously.
Slip Opinion at 27-29. As the court noted, this process requires counsel to cooperate and communicate and results in the resolution of most discovery disputes. What the Judge doesn’t say is that essentially he has provided a blueprint for many Rule 26(f) meet and confer conferences.