In the last two rulings I covered with this judge, he quoted Ron Burgundy and referenced William Shakespeare.  No pop culture or literary references this time, but observations to the lack of cooperation between the parties and for parties in general in eDiscovery…

In Balderas v. Illinois Central RR Co., No. 20 C 1857 (N.D. Ill. Jan. 8, 2021), Illinois Magistrate Judge Jeffrey Cole granted in part and denied in part the plaintiff’s Motion to Compel Defendants to Comply with their discovery obligations, rejecting the defendants’ boilerplate objections in several instances in granting plaintiff requests, while also cautioning against “inflexibility” when addressing discovery issues with opposing counsel.

Case Background

In this case involving allegations of employment discrimination based on sex and disability by the plaintiff against the defendants, the plaintiff made discovery requests and (according to the plaintiff) the defendants submitted responses that were two months late. After that, the defendants claimed they produced all that was properly requested and that there was nothing else to produce, but the plaintiff did not accept certain of the defendants’ objections or its claims that nothing else existed. As a result, the plaintiff filed a Motion to Compel Defendants to Comply with their claimed discovery obligations.

Judge’s Ruling

Judge Cole began his ruling by stating: “Generally, a party takes the word of the opponent that there has been compliance with discovery obligations as they relate to the existence of properly requested documents. Yet, from time to time courts supervising discovery are confronted by the claim that the production made is so scanty that ‘there must be more’ that has not been produced or that relevant documents have been destroyed. But insistence that there must be more is not enough. Here, as always, merely ‘saying so doesn’t make it so.’… So too in a discovery context. Courts will not accept mere suspicion or speculation that ‘there must be more.’ Hunches don’t count… If the rule were otherwise, discovery – long and tedious as it often is – would never end. Thus, courts require that the moving party make out a case for further discovery by showing that it can reasonably be deduced that other documents exist, or may have at the time of receipt of the document request. A court cannot compel plaintiff to produce that which does not exist.”

Continuing, Judge Cole also stated that “a party that inflexibly maintains its position could insist that it was ‘right,’ but find itself on the losing side when the matter comes before a court. Given a court’s vast discretion in overseeing discovery, a court could choose to accept the other side’s ‘right’ position while rejecting the contrary position of the opposing counsel. A negotiated outcome between counsel is generally more likely to give both sides a mutually satisfactory resolution. Unfortunately that course is often not followed, and resolution of the dispute must come from the court.”

With regard to the plaintiff’s requests for complete employee/personnel files for two individual defendants and twelve similarly situated and managerial employees, Judge Cole rejected the defendants’ “boilerplate” objections, stating that “boilerplate objections are tantamount to making no objection at all” and stating that the plaintiff’s discovery was “targeted”.  Judge Cole also rejected the defendants’ “boilerplate” objections for requests regarding several other categories of discovery, including a request for all communications between two individuals defendants regarding the plaintiff or her allegations, stating “there are only two individuals, and both are defendants. The objection is not well founded. Finally, defendants now – again, two months after responses were originally due – claim they have no documents responsive to the request. As the story appears to have changed over the course of several weeks, defendants are ordered to conduct an additional, thorough search for the requested information.”  For most of the plaintiff’s requests, Judge Cole ordered the defendant to conduct a search and produce responsive documents within fourteen days.

Judge Cole concluded his order by stating: “While compliance with Local Rule 37 is a necessary precursor to the filing of any discovery motion, parties should not overlook the benefits offered by genuine and flexible participation in the process established by the Rule.”

So, what do you think?  Was it a lack of cooperation by both parties or a lack of full adherence by one of the parties to its discovery obligations that caused the disputes?  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, an Affinity partner of eDiscovery Today.

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