When I started as a litigator in 2001, a technique I call "blind stonewalling" ruled discovery practice everywhere from BigLaw to the smallest boutiques. But the slow evolution of the Federal Rules of Civil Procedure (FRCP), a gradual change in the practices that federal courts accept, and the rise of electronic discovery and spoliation as a major issue may finally be putting the practice to rest.
This article compares blind stonewalling to what many consider contemporary best practices. It also provides case law you can use to support the "new way."
A complaint comes in the door. Comprehensive document requests seeking "each and every" conceivable type of material follow quickly on its heels. The lead partner chats briefly with the general counsel to get the defendant's side of the story. That story may or may not have been based on a single interview with the employees who know the underlying facts. An answer and defenses go out the door, based far more on the law than the facts.
The lead partner calls in a junior associate and says, "Prepare a response and objections to this request for production. Here's the last one I sent, you can use it as a form." The junior associate isn't expected, or perhaps even allowed, to contact anyone at the client company to prepare the response.
The junior associate begins with a long set of boilerplate general objections to requests:
- "to the extent that they include no reasonable time limitation" — without saying what limitation is reasonable or why
- "to the extent they go beyond the requirements of the Rules" — without explaining how, if at all, they do
- "to the extent they define CLIENT to go beyond the entity itself to any employee, related entity, or CLIENT's lawyers" — without explaining why the definition wasn't reasonably calculated to lead to admissible evidence, even where the client clearly had the legal right to obtain the documents, and without offering a privilege log for the lawyers' documents
- "to the extent they are overbroad, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence" — without explaining how, why, which requests, or what the client contended was actually discoverable
- flatly refusing to produce emails, voicemails, and electronic calendars
Responses to individual requests then purport to "incorporate" every general objection, are largely cut-and-paste from one request to the next, and say something like this:
Defendant objects to this request to the extent it seeks privileged documents, trade secrets, confidential information, and information that is not reasonably calculated to lead to the discovery of admissible evidence. In addition, Defendant objects that the request is overbroad and unduly burdensome. Without waiving these objections, Defendant will produce non-privileged, non-objectionable documents at a time and place mutually convenient to the parties.
These objections tell the plaintiff virtually nothing about what will be produced or withheld, so counsel schedule a telephone "meet and confer" to argue about each request and objection. After that call, they each rush to send competing letters purporting to "document" their conversation, usually with enough spin to embarrass a major league batter.
Only after a few rounds of this expensive, and often unproductive "battle faxing" will lead counsel even contact the client to see what they actually have. The client ships over boxes of documents, and a team of associates with little knowledge of the case read a summary of the document request and comb through the boxes deciding what to produce. Rarely do they document on what basis they are withholding the documents they chose not to produce. They then make a "rolling" paper production to the other side, and delay for months producing any kind of privilege log.
Lead counsel then serves several rounds of amended discovery responses trying to stave off the inevitable motion to compel. The motion follows anyway, attaching hundreds of pages of battle faxes, and suggesting the defendant's answer be stricken because of suspected spoliation. Both sides come to court for the hearing with little idea what the defendant actually has, and is producing or withholding. They argue in generalities about their boilerplate objections, and the court either picks the side it suspects of baloney and rules carte blanche against them, or throws its hands up and splits the baby.
The process is repeated with the second round of requests until well beyond the court's supposed "discovery deadline." Oh, and at some point, you might send the general counsel a purportedly privileged "litigation hold memorandum" consisting of 15 pages of legalese, vaguely hoping it is sent to everyone at the company and that they stop recycling their backup tapes.
The resulting mess is perhaps best summed up by the horrified opinion of Judge Shira Scheindlin in Pension Committee v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (sanctioning virtually every party for "grossly negligent" handling of litigation holds and their discovery response and document collection process), overruled in pertinent part by Chin v. Port Authority of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012) (holding that failure to circulate a litigation hold was not necessarily grossly negligent).
The Road to Reform
During these bad old days, the results of motions to compel were largely ad hoc and rarely hewed closely to what might actually result in the production of significant evidence. Instead, they'd often impose such onerous burdens on the defendant that its settlement calculus changed and the case went away, regardless of its merits.
Spoliation sanctions spread like wildfire, and began to unfairly drive outcomes. Gradually, and unevenly, courts grew wise to the damage this collateral issue was doing to substantive justice, and backed off. The FRCP were revised to help them do it. Parties learned at their peril to send decent litigation holds and send them early.
The Sedona Conference, whose members published as prolifically as Stephen King, worked tirelessly to balance both sides' legitimate interests, convince parties to transparently cooperate, and persuade judges to enforce best practices.
Then, in December 2015, the most comprehensive FRCP revision in a decade hit the books. Discoverable information went from what was "reasonably calculated" to lead to admissible evidence to what was "relevant" and "proportional to the case." And the rules sharply defined what types of spoliation could be sanctioned and how.
The new rules changed the real meaning of most discovery concepts less than most people thought, reorganizing and reprioritizing them more than it redefined them. See Michael Thomas Murphy, Occam's Phaser: Making Proportional Discovery (Finally) Work in Litigation by Requiring Phased Discovery, 4 Stan. J. Complex Litig. 89, 95 (Spring 2016) (explaining "Proportionality's Long Journey Around the Federal Rules). Nevertheless, courts treated the new rules as a serious new directive, and their rulings began to change. See Samantha V. Ettari, Sanctions Under Amended FRCP 37(e): One Year In, Practical Law (Dec. 2016/Jan. 2017).
A "New Way" was emerging. See United States ex rel. Carter v. Bridgepoint Education, Inc., 305 F.R.D. 225 (S.D. Cal. 2015) (a veritable treatise on contemporary discovery best practices).
The New Way
I'm not saying the New Way is the only way discovery must be conducted in every case and in every jurisdiction. Courts themselves have recognized that different "cultures" prevail in different places and different types of cases, and courts shouldn't enforce their ideas of best practices with the iron fist of sanctions. See Liguria Foods, Inc. v. Griffith Lab., Inc., 2017 WL 976626 (N.D. Iowa, March 13, 2017) (criticizing boilerplate objections and stonewalling in discovery but declining to sanction it because of local "culture"). But I do think the New Way represents emerging best practices.
You need not follow every practice, every time – particularly if the case is small, the local culture isn't amenable, or your opposition is so unreasonable that using the New Way might disadvantage your client. But I think that if you follow these practices, you're more likely to win your motion for a protective order, and highly unlikely to be sanctioned:
- Figure out what your client has and get it held before your initial conference.
- Be transparent at your initial conference about what you're holding, what you plan to produce, and in what format.
- Gather your documents early and process them thoroughly.
- In your responses, say up front what you're producing, make only specific objections, and fully explain your basis for each.
- Minimize the cost of good faith conference by doing it the right way.
Here's what I mean, illustrated by a hypothetical:
Dunder sues your client, Mifflin, over a $1 million contract negotiated and signed in 2005, that went sideways in 2013, and is allegedly causing lost profits even today. Michael and Angela handled the contract for Dunder; Jim and Pam handled it for Mifflin, and Dwight had a minor role, but left the company in 2014.
Figure out what your client has and get it held before your initial conference.
Identify the players. When you get the complaint, you still begin by getting your client's version of the story from your contact, say the general counsel. But now, don't get off the phone until you've identified your key players, Michael and Angela, and your secondary player, Dwight.
Include the team. If your associate or paralegal will help with the discovery responses and document review, include them on the call. If the company balks at the cost, explain that you'd rather save it the cost of explaining everything to the team later, as required for them to do the work properly — or the even bigger cost of redone work, motions, and possible sanctions if it's done wrong the first time.
Learn what the players have. Arrange to speak with Michael, Angela, and, if possible, Dwight. Get their stories. Find out how they do business, what information they touch or create, and how and where it's stored. Do they use a computer, tablet, phone, voicemail, calendaring system, shared drives, cloud storage, personal devices, proprietary software, old fashioned paper, text messages? And yes, their text messages may be discoverable in appropriate cases. See Brown v. Certain Underwriters at Lloyds, London, 2017 WL 2536419 (E.D. Pa. June 12, 2017) (sanctions for failure to preserve text messages); Stinson v. City of New York, 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016) (imposing permissive adverse inference instruction where policy department failed to timely implement or adequately follow up on litigation hold, resulting in destruction of ESI including text messages on department-issued phones).
Get it held. Ask the key players to hold this stuff, segregate copies, and get it to you. Get it in the format in which it's kept in the ordinary course of business and in native format if possible. See American Auto. Ins. Co. v. Hawaii Nut & Bolt, Inc., 2017 WL 80248 (D. Haw. Jan. 9, 2017) (metadata and native format ESI must be produced if requested but only if that's how ESI is maintained in normal course of business).
Learn what might be lost. Follow up with a short, plain-language hold memo that is not privileged, because you want to be able to show it to the court and the opposition with no question of waiver. The memo should explain the case in a few sentences that summarize the complaint, and explain the company's position on it in the same 20-second "elevator speech" you'll give the court at the first hearing. It should explain as concisely as possible what type of information you reasonably think will be the information relevant and proportional to the case, and ask that it be held.
Document your process. Document these interviews so you can later prove that you conducted them, and what you learned. If the company doesn't already have a data map, make one from this material. If you don't have these interview documents and data map, you may later find you need to create them. See Small v. University Medical Center of Southern Nevada, 2014 WL 3710148 (D. Nev., March 18, 2014) (requiring in camera review of a party's data map and requiring the party to provide written interviews of custodians and chain-of-custody documents); Bagley v. Yale University, 318 F.R.D. 234 (D. Conn. Dec. 22, 2016) (holding that litigation hold notices, response forms, and information about how hold was implemented were not privileged, and ordering their production, where defendant was "leisurely" in the pace of its litigation holds).
Decide your litigation hold tactics. Figure out when and how the client's routine business systems destroy old information. When Dwight left the company, what happened to his stuff? How long will it be before Michael and Angela's older emails start disappearing, and when they do, what archival format if any do they disappear to? Now you make a business decision about how far you're going to go to preserve exactly which stuff. Appropriately document that process. There's much nuance to doing this the right way. Opinions on these issues continue to run a wide gamut, even under the new Rules. See, e.g., Storey v. Effingham County, 2017 WL 2623775 (S.D. Ga. June 16, 2017) (allowing evidence and argument at trial about failure to preserve video that was deleted after 30 days in apparent violation of standard procedures, against argument that there was no duty to preserve where inmate did not sue for 11 months); Rockman Co. v. Nong Shim Co., Ltd., 2017 WL 275405 (N.D. Cal. Jan. 19, 2017) (declining to award sanctions because foreign investigation did not give rise to duty to preserve in reasonable anticipation of U.S. litigation).
Be transparent at your initial conference about what you're holding, what you plan to produce, and in what format.
Technically it's required from both sides. The FRCP now say parties should thoroughly discuss the specifics of ESI and discovery issues at their initial conference, and produce what's really important without waiting for discovery requests. Actual practice still usually falls pretty far short of that. But always try come to the call informed and well-prepared. If the other side doesn't, pin them down on it and document their failure to do it right. See Nissan North America, Inc. v. Johnson Electric North American, Inc., 2011 WL 1002835 (E.D. Mich., Feb. 17, 2011) (party put the other side on its heels by informally requesting its data map in good faith conference). Remember, if you play your cards with foresight, more of your discovery costs may be recoverable. See Javeler Marine Services, LLC v. Cross, 175 F. Supp. 3d 756 (S.D. Tex. 2016) (forensic imaging costs recovered because cost-sharing agreements were done thoughtfully).
Transparency can save you money. To the extent you can, handle things transparently, plainly telling the other side what documents you think they're entitled to, and what you do and don't intend to give them in discovery. Tell them what you plan to hold and what you don't. Tell them it's 2005 and no earlier. Tell them how key files are kept in the ordinary course, and what format you want to use to produce them. If there's going to be dispute about these things, you want to reach it early and see how hard they plan to fight. That way you don't spend any more money or effort on the dispute than it's worth. Don't let your initial reluctance to "give things away" lead to a nasty search-and-produce or spoliation fight months from now when you'll be duplicating your search costs or, worse, finding ESI unrecoverable and possibly paying sanctions. See Morgan Hill Concerned Parents Assoc. v. California Dept. of Ed., 2017 WL 445722 (E.D. Cal. Feb. 2, 2017) (requiring expensive second production because a party could not simply "ignore" requests for native format and produce in another).
Gather your documents early and process them thoroughly.
Figure out where the hardships are. The earlier you gather your documents, the more realistic and specific your discovery responses can be. Know what's actually there and you can use the treasured response "no responsive documents exist." Know what's actually not going to be cheap, quick, and easy to find, and you can clearly describe and quantify "undue burden" and "overbreadth," and defensibly estimate costs. Proportionality is real, and it can keep you from incurring staggering discovery costs, but it requires a well-documented and defensible position. See, e.g., In re: Blue Cross Blue Shield Antitrust Litig., 2017 WL 2889679 (N.D. Ala. July 6, 2017) (denying discovery on proportionality grounds); Babcock Power, Inc. v. Kapsalis, 2017 WL 2837019 (W.D. Ky. June 30, 2017) (same); Leadership Studies, Inc. v. Blanchard Training and Development, Inc., 2017 WL 2819847 (S.D. Cal., June 28, 2017) (same); Samsung Electronics Am., Inc. v. Chung, 2017 WL 2832621 (N.D. Tex. June 26, 2017) (denying motion to compel on proportionality, but discussing need for specific objections and candid responses).
Pick your tools wisely. Except in the smallest case, seriously consider using litigation document management software like Relativity or iPro. You're being pennywise and pound foolish if you think hosting costs more than you'll save on your ability to cleanly document your process to adapt to changing requests and rulings, automate most of your privilege log process, make short work of redaction, and effectively grapple with native format productions. You may also be able to save a bundle in the right case by using Technology Assisted Review (TAR). See Duffy v. Lawrence Mem. Hosp., 2017 WL 1277808 (D. Kan. March 31, 2017) (calling it a "myth" that manual review is more accurate or effective than TAR).
Document your process. Take advantage of what your tools offer. Spend time getting a good set of issue codes set up and training your team on what's really important in the case. Make sure they're careful and thorough in documenting privilege, work product, and issue coding. A little time early on saves a lot of time later. That second request for production is a lot easier to respond to when your withheld documents are issue-coded. That overruled objection isn't such a headache when you can automatically search for everything you withheld because of it. See Nachurs Alpine Solutions Corp. v. Banks, 2017 WL 2918979 (N.D. Iowa July 7, 2017) (requiring defendant to produce all ESI containing keywords that it had reviewed and determined were not responsive, but requiring plaintiff to bear its own costs of reviewing them). Your privilege log is a breeze when you're well-coded and redacted.
In your responses, say right up front what you're producing, make only specific objections, and fully explain your basis.
Avoid general objections. Try not to use general objections at all. If there's something truly outrageous about the entirety of the other side's request, fair enough. But courts don't like general requests, and many have issued orders ignoring them and suggesting they don't even preserve this issue.
Be forthcoming and specific in your responses. The court doesn't want to hear how objectionable you find the request. And it doesn't want a generic recitation of your objection, as opposed to something well-tailored. See Ashmore v. Williams, 2017 WL 2437082 (D.S.C. June 6, 2017) (boilerplate proportionality language is not enough to preserve that objection); Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459 (N.D. Tex. 2015) (party objecting bears burden to provide specific evidence on proportionality). Courts want to know what you're producing, and specifically what you're not. This example is a bit of an over-the-top Platonic ideal of what a court might like, but try a response to your opponent's key requests along these lines:
Mifflin will produce documents related to the Sideways contract from 2005 to present that can reasonably be located in (1) the contract-specific paper files, (2) the contract-specific shared electronic folders, (3) the contract-specific email folders, and (4) the contract-specific cloud folders of Michael and Angela. Mifflin will produce these materials in native format.
Mifflin will also search its proprietary Whizz-Bang trading and accounting software and produce its reports in searchable PDFs. No potentially relevant metadata exists in that system.
Mifflin believes these locations contain all discoverable, non-duplicative responsive information proportional to the case because the contracting process began in 2005, because Michael and Angela were primarily responsible for the contract, and because they used these locations for their work. Mifflin will not search personal devices, voicemails, texts, or archival backup systems because it does not believe that discoverable, non-duplicative information would likely be found there.
Broader searches would be unduly burdensome and not proportional to the case because only $1 million is alleged to be at stake, there are no other readily-searchable locations known to contain non-duplicative responsive information, emails are archived by Mifflin's system after 90 days unless saved to a specific folder and each email box would cost an approximate minimum of $10,000 to restore.
Mifflin will not search for documents belonging to Dwight because his documents and emails were purged in 2014 when he left the company, before the company reasonably anticipated litigation in which Dwight's materials would be discoverable, and Mifflin has no current contractual right to obtain material Dwight personally may possess. Mifflin will provide a privilege log for any privileged responsive material.
After that, you may be able to respond to most of their other requests with something like "Mifflin believes the process described in Response 1 will obtain and result in production of discoverable information encompassed by this request." Put the onus on the other side to be specific in their requests, or to narrow them. See Medicinova Inc. v. Genzyme Corp., 2017 WL 2829691 (S.D. Cal. June 29, 2017) (denying discovery, in part, where party refused to narrow its broader requests).
Responding this way is far more defensible in many courts today. See Polycarpe v. Seterus, Inc., 2017 WL 2257571 (M.D. Fla. May 23, 2017) (overruling boilerplate objections, including on proportionality); Samsung Electronics Am., Inc. v. Chung, 2017 WL 896897 (N.D. Tex. March 7, 2017) (denying interrogatories motion to compel on proportionality but discussing need for specific objections and candid responses).
Minimize the cost of good faith conference by doing it the right way.
Good faith conference shouldn't devolve into an exchange of nasty emails telling the other side how ludicrous you find their positions. That's an expensive waste of time. If the likelihood of losing a motion to compel in this particular court outweighs the real cost (in business terms) of producing, then produce. If you're willing to amend your response, do it sooner rather than later. Move the court for relief when you have to and not otherwise. If you think a motion to compel is likely, move for a protective order first — you'll look proactive, probably get to speak first, and get a reply brief if your jurisdiction allows them.
Conclusion: Remember This is Custom Work
Just as one boilerplate objection can't be recycled ad infinitum in every case, the approach outlined above can't be mechanically applied to every case. Each piece of litigation is cut from its own cloth. Sometimes general objections must be made. Sometimes a case is so frivolous or small that formal litigation hold procedures can't be justified. Sometimes your secrets really are important enough to go to the mat on. See Rodriguez v. County of Riverside, 2017 WL 2974919 (C.D. Cal. July 12, 2017) (denying discovery of confidential spreadsheet of officer-involved shootings after in camera review showed it was only marginally relevant, information could be obtained in easier ways, and request was not narrowly tailored). And, by contrast, sometimes you really do need to forensically image people's hard drives and cell phones right out of the gate. See PC Connection, Inc. v. Mereos, 2017 WL 1078121 (D. Md. March 22, 2017) (awarding emergency injunction requiring independent forensic search of ESI including cloud storage to determine if trade secrets had been stolen).
If you can play it this way, though, and convince your opposing counsel to do likewise, litigation might become an efficient, brave new world.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.