Another Saturday post, on a holiday weekend to boot! A few weeks ago I covered this topic on the EDRM blog, which seems appropriate, since they host the monthly case law webinar that I moderate with excellent observations from Tom O’Connor (Director of the Gulf Legal Technology Center), Mary Mack (CEO and Chief Legal Technologist of EDRM) and Hon. Andrew Peck (Ret.), Senior Counsel at DLA Piper. Our webinars are fun and informative, and I always learn something from Tom, Mary and Judge Peck.
One of our favorite judges to cover is Illinois Magistrate Judge Jeffrey Cole. His rulings are always entertaining, he sometimes works cultural references into them, and he pulls no punches when it comes to how he views lack of cooperation and other failures in eDiscovery. In a little over two years, eDiscovery Today has already covered seven of Judge Cole’s rulings (the most of any judge so far). With that in mind, here are notable Judge Cole observations from the “magnificent seven” rulings we have covered.
Saleh v. Pfister: You’ve gotta love a court opinion that includes both a waiver of boilerplate objections and a quote from Ron Burgundy. After defense produced its entire production – 4 pages of documents – and plaintiff’s counsel speculated that defendant had either not conducted a good faith search or had destroyed documents, Judge Cole stated: “Once the charge of spoliation was made, things, to quote Ron Burgundy, ‘really escalated quickly.’”
He also addressed the defendant’s objections to the plaintiff’s discovery requests with a recurring theme he has discussed in subsequent cases as well: “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.” In ordering the defendant to produce all documents and a witness for a 30(b)(6) deposition, he also stated: “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.”
Balderas v. Illinois Central RR Co.: Here, Judge Cole addressed the parties lack of cooperation on both ends, stating in response to a motion to compel: “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.” He also chastised the defendants for “boilerplate” objections, stating that “boilerplate objections are tantamount to making no objection at all” and stating that the plaintiff’s discovery was “targeted”.
Bierk v. Tango Mobile, LLC, et al.: Judge Cole noted at the beginning of the order to resolve the dispute over defendant’s 30(b)(6) witness deposition: “At seemingly every turn, the parties in this case have struggled with discovery. In the last two months, the parties have done their best to monopolize the court’s attentions, filing motion after motion regarding their problems getting through rather routine matters in what appears to be a rather unexceptional contract dispute.” He also noted: “Proportionality, like other concepts, requires a common sense and experiential assessment.”
Noting that “neither side followed the procedures they were instructed to follow multiple times”, Judge Cole resolved the dispute over defendant’s 30(b)(6) witness deposition by allowing the plaintiff two hours of additional deposition time with the defendant’s witness.
Berkeley*ieor v. Teradata Operations, Inc.: This ruling dealt with a timely issue in the era of the pandemic – in-person depositions. The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four 1800-mile airline trips between Chicago and California to support two in-person depositions a week apart, as the Delta variant of COVID was beginning to surge. The defendant objected to the trips a week apart and suggested the deposition could be completed remotely.
In response to the plaintiff’s request, Judge Cole stated: “For reasons that are all too obvious, as the Summer drew on – and by the time Berkeley filed its motion to compel on July 23rd – live depositions, which were an unnecessarily risky idea in the first place, became a bad idea. And the thought of multiple airline trips to take the depositions became a terrible and unacceptable one. The pandemic continues, and new cases and hospitalization numbers have again soared, as a more contagious and virulent variation of the virus is sweeping across the County – and the world – with terrifying results, causing some local governments to reinstitute restrictions on all facets of daily living.”
Continuing, he stated: “The wisdom under the present circumstances of a party demanding a live deposition of a witness and requiring opposing counsel to make four 1800-mile airline trips is questionable – to say the least. Not only the ‘optics,’ but the reality of the situation are even worse as the plaintiff is demanding two separate round-trips to California for the convenience of one of its attorneys…As indicated, this portion of Berkeley’s motion is denied.”
Stagger v. Experian Info. Sol., Inc.: Here, Judge Cole began by chastising both parties, stating: “A fair amount of the parties’ back and forth can be glossed over as it is clear the law firms are familiar with one another and not altogether cordial, especially given the tone taken on Experian’s side. Unfortunately, familiarity does seem to breed contempt, more so in litigation and especially in discovery. But not every case, and certainly not every little discovery spat needs to be treated as if it were Napoleon’s retreat from Moscow. In the case of discovery disputes, it’s a highly questionable strategy because once counsel abandons their responsibilities under Local Rule 37.2 and demands court intervention, it becomes a matter committed to the broad discretion of the court…Consequently, it behooves counsel to work things out on their own where possible.”
Regarding the plaintiff’s request for emails and document(s) related to Experian’s post-bankruptcy reporting scrub procedures and Experian’s privilege objection, Judge Cole stated: “Experian asserts a novel argument as why it did not have to comply with the rules and principles. It claims that, because it also generally objected on the grounds of relevance, that meant it did not have to comply with Fed.R.Civ.P. 26(b)(5) then and there…It asserts that if the court rules the documents at issue are relevant, it will then – only then – ‘collect those documents, [and] conduct a privilege review.’…In other words, according to Experian, it has yet to review the responsive documents. If Experian hasn’t gone over the documents, how could it claim they are privileged in its objections to the plaintiff’s document request back in July and, more importantly, how can it claim the are privileged in a brief filed in federal district court? The only answer is that those claims have been made in bad faith and, of course, cannot be upheld.”
Deal Genius, LLC v. 02 Cool, LLC: Here, Judge Cole highlighted another failure to cooperate, stating: “Rather than take the opportunity of settling their email dispute at or before the hearing, the parties chose to file briefs on the matter…The attorneys even disagreed over what happened between them at certain points in their months-long squabble. It is the attorney version of the children’s taunt, ‘I know you are but what am I?’ Unfortunately, it is all too common – and unnecessary…And seems to be even more common in discovery disputes like this one. As such, a tedious summary of counsels’ competing versions of what occurred is unnecessary – and unhelpful.”
Because of the lack of cooperation, Judge Cole put the dispute back in the parties’ hands, stating: “It should go without saying that months of arguing over five search terms, and then involving a court in that dispute in any event, would be out of proportion to the needs of many cases. But there can be no dispute that what has gone on thus far in this particular case is out of proportion with the needs of this particular case and the commands of good sense…The attorneys in this case are, essentially, at square one. They have not whittled their dispute down far enough for meaningful court intervention.” He also noted that selecting search terms that might assist in locating pertinent documents “is counsels’ job, not the court’s” and suggested in a footnote that the parties should consider engaging a special master to resolve the dispute instead of slowing down the court docket to have the court review hundreds of documents.
Judge Cole’s rulings illustrate a common theme in litigation today – lack of cooperation and judges’ growing frustration with it. His rulings are always entertaining and educational, so expect to see more of them in eDiscovery Today and discussed on the EDRM monthly case law webinar! Speaking of eDiscovery case law webinars, our June 2022 EDRM case law webinar will be on Thursday, June 30th at 1pm ET! Hope you can join us!
So, what do you think? Should more judges take a blunt approach when addressing parties with discovery disputes? Please share any comments you might have or if you’d like to know more about a particular topic.
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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.
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