Did you think I wouldn’t carry this forward on the new blog?  Once again, it’s Shark Week on the Discovery Channel (not to be confused with Tom O’Connor’s eDiscovery channel covered here).  To celebrate Shark Week in eDiscovery terms, I’ve decided to make this the first eDiscovery Case Week on eDiscovery Today.  We’ll cover five cases in the next five days!  Here’s the first case.

You’ve gotta love a court opinion that includes both a waiver of boilerplate objections and a quote from Ron Burgundy…

In Saleh v. Pfister, No. 18 C 1812 (N.D. Ill. July 30, 2020), Illinois Magistrate Judge Jeffrey Cole, after the defendant submitted boilerplate objections and only produced four pages of discovery (late), granted the plaintiff’s Motion to Compel Responses to Requests for Production and to Compel a Fed.R.Civ.P. 30(b)(6) deposition from the defendant.

Case Background

In this case concerning a Muslim inmate at an Illinois Correctional Center and a conflict between the schedule for a trip to the commissary and Friday Jumu’ah prayers, defendant Illinois Department of Corrections (IDOC) was late with production of documents and was ordered to complete its obligations by March 31, 2019. When IDOC did not respond, the plaintiff, then acting pro se, filed a motion for sanctions contending that IDOC had not complied with the court-ordered deadline. The motion was denied, but counsel was appointed.  Eventually, defense counsel produced its entire production – 4 pages of documents – after which plaintiff’s counsel speculated that defendant had either not conducted a good faith search or had destroyed documents.

As Judge Cole noted, “Once the charge of spoliation was made, things, to quote Ron Burgundy, ‘really escalated quickly.’”  Disputes continued between the parties, with defense counsel complaining that it was a waste of time to ask for documents plaintiff already had copies of himself and refusing to meet and confer, leading to the motions filed by the plaintiff.

Judge’s Ruling

Judge Cole noted in the very first paragraph of his ruling that “like so many other cases, [discovery] has been less than harmonious, proving again, unfortunately, the wisdom of Judge Posner’s lament that protracted discovery is the bane of modern litigation.”  Starting by addressing the defendant’s objections to the plaintiff’s discovery requests, Judge Cole stated:

“First things first. Time and time again, attorneys are warned that boilerplate objections are unacceptable. They are tantamount to not making any objection at all…Nonetheless, IDOC’s responses are replete with them. An example of IDOC’s non-responsiveness came early on when plaintiff, then acting pro se, asked when IDOC became aware of the conflict between the commissary schedule and Jumu’ah. IDOC said, without explanation, that the interrogatory was ‘overly broad and vague.’ But the conflict is what this case is about. The request was laser-focused, perhaps more focused than many requests from seasoned attorneys. The response, which was indicative of others, was not. The boilerplate answer constituted a waiver of whatever objection, if any, IDOC might properly have made. Boilerplate objections, as we have shown, are ineffectual in all contexts.”

Detailing some of the areas where defense counsel failed to cooperate with plaintiff’s counsel, Judge Cole stated: “In a remarkable assertion, she explained that, for example, letters plaintiff wrote to the warden about his grievance – about the conflict between prayers and commissary time – would only be responsive and produced if they had been attached to his grievance. She said if plaintiff’s counsel wanted to know if anyone knew of such letters or had them, he would have to issue another request specifically asking for them. She said he could not file a motion to compel, because he already had received the four pages of plaintiff’s grievance. She could not yet produce a name of the warden’s designee for a deposition; she was still conferring with IDOC. And, finally, she did not agree to plaintiff’s statement as to what IDOC’s commissary time accommodation policy was; she said it was what she had sent before.  There was no policy. The conduct of defendant’s lawyer is troubling even in these overly and needlessly contentious times and it served no legitimate purpose or helped to achieve any worthy end.”

Noting that “counsel for IDOC simply took an unreasonable and far too narrow view of what was responsive and refused to budge”, Judge Cole granted the plaintiff’s motions, ordering defendant IDOC to “1) produce a witness for an IDOC 30(b)(6) deposition; 2) produce all documents, wherever located, that relate to the incidents leading to plaintiff’s grievance, any investigation done regarding the grievance, and any determinations made regarding that grievance; and 3) identify within seven days Defendant Pfister’s so-called designee.”

Also, just a reminder that, on Wednesday, August 19th, HaystackID will conduct the webcast On the Case? eDiscovery Case Law Update for the First Half of 2020 at noon ET (11am CT, 9am PT).  In this presentation, I will be covering key case law developments during the first half of 2020 – along with Ashish Prasad, Vazantha Meyers, Todd Haley and Seth Curt Schechtman of HaystackID – to identify important rulings that may impact how you conduct discovery going forward.  Don’t miss it!

So, what do you think?  Does defendant counsel’s behavior rise to level that is sanctionable?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.