In Boulder Falcon, LLC v. Brown, No. 2:22-cv-00042-JNP-JCB (D. Utah March 28, 2023), Utah Magistrate Judge Jared C. Bennett denied defendants’ motion for sanctions and granted plaintiff’s motion for a protective order because defendants’ counsel conducted the plaintiff’s president deposition in bad faith and failed to meet and confer over confusion over the plaintiff’s load file format production.
As part of the Introduction to his ruling, Judge Bennett referenced a particular book which presents “a model that accurately describes how individuals, including civil litigators, go from observing a phenomenon to reacting to it”, as follows:
Judge Bennett stated: “The authors discuss how the second step in the path to action is often where things go awry because when those embroiled in a pre-existing conflict see their ‘enemy’ do something, the other side generally ascribes sinister motives to those actions even though those same actions may have several innocent explanations…High on negative emotion, the observer then acts to right the perceived wrong that the enemy has perpetrated.”
The plaintiff responded to Defendants’ Rule 34 requests by producing approximately 7,000 pages of materials in an electronic, load-file format so that they could be uploaded into discovery review software. Although the plaintiff produced load files, it did not inform Defendants of that fact, and Defendants did not upload the load files into discovery review software. Consequently, to Defendants’ counsel, Louis R. Cohan, Boulder Falcon’s production appeared to be a randomized, unorganized, and duplicative mess. The links in emails to attachments did not work, and email attachments did not necessarily follow their parent email in the production.
As Judge Bennett stated: “Once Mr. Cohan saw Boulder Falcon’s format for its document production, he assumed the worst, had an emotional reaction, and decided to act based on the wrong he perceived Boulder Falcon was trying to underhandedly perpetrate.”
That was reflected in the deposition of Jeffrey Vitek, President of Boulder Falcon. As stated in the ruling, Mr. Cohan’s path to action was to “make a record” by taking Mr. Vitek’s deposition. Mr. Cohan: “(1) made several argumentative statements and questions, (2) asked questions without a good faith basis, and (3) scrolled through Boulder Falcon’s document production in roughly sequential order to prove the point that he had received a document dump.” The ruling went into considerable depth to provide examples of all three issues and, ultimately, plaintiff’s counsel Bryon J. Benevento concluded that Mr. Cohan was taking the deposition in bad faith to unfairly cast Mr. Vitek in a bad light, had an emotional reaction based on that belief, and, eventually, ended the deposition prematurely.
Summarizing the issue, Judge Bennett stated: “Sadly, it was not until after Mr. Benevento ended the deposition that both sides learned the truth: Boulder Falcon had produced load files for discovery review software, and Mr. Cohan had chosen not to use discovery review software and, therefore, had only the raw images of the documents… Although there is plenty in this record that should cause both counsel to rethink their behavior, the bottom line is that this entire saga could have been easily avoided had Mr. Cohan just done what the Federal Rules of Civil Procedure and their local counterparts require in the face of a discovery problem: meet and confer before resorting to the ‘Oh-yeah-I’ll-show-you’ tactics of litigation.”
Regarding the plaintiff’s request for a protective order, Judge Bennett stated: “Mr. Benevento appropriately terminated Mr. Vitek’s deposition because Mr. Cohan took it in bad faith… As shown in order below, Mr. Cohan conducted the deposition of Mr. Vitek in bad faith by conducting it for an improper purpose and lacking a good faith basis for several questions that asserted adverse facts. Therefore, Mr. Vitek’s deposition was justifiably terminated early.”
He also ruled that “Mr. Cohan Conducted Mr. Vitek’s Deposition for an Improper Purpose”, stating: “Making a record of a Boulder Falcon’s purported non-compliance with Rule 34 is an improper purpose to take a deposition because the Federal Rules of Civil Procedure and their local counterparts specifically require Mr. Cohan to meet and confer before taking action to address a problem over a Rule 34 production…One of the discovery cooperation rules that Rule 37 unmistakably requires is for a party to meet and confer before seeking to compel the disclosure of discovery.”
Continuing, Judge Bennett stated: “There is no evidence that Mr. Cohan attempted to meet and confer here… Nevertheless, even assuming arguendo that Mr. Cohan attempted to meet and confer and that Boulder Falcon rebuffed Mr. Cohan’s request, Mr. Cohan had an obligation to file a motion to compel with this court no later than 45 days after his letter detailing his problems with Boulder Falcon’s document production…That clearly did not happen, and Mr. Cohan did not file a motion seeking to extend his deadline to file a motion to compel.”
As a result, Judge Bennett ruled as follows: “the court first concludes that Mr. Benevento properly terminated Mr. Vitek’s deposition because Mr. Cohan conducted the deposition in bad faith and, therefore, grants Boulder Falcon’s motion for protective order. Second, the court imposes sanctions for the bad faith deposition to protect the interests of justice and to maintain civility.”
Those sanctions were to strike Mr. Vitek’s deposition transcript and preclude it from being used for any purpose in the action. Judge Bennett did allow defendants to depose Mr. Vitek for the two hours remaining in the 7-hour period allowed under Rule 30(d)(1).
So, what do you think? Would a level of eDiscovery competence from defendants’ counsel regarding understanding load files have avoided the end result of conducting the deposition in bad faith? 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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And while I’m railing, may I add that the requesting party (i.e., defense counsel) had the right to specify the form or forms of production sought, and no one acting in a client’s interest should fail to avail themselves of that estimable privilege. Where was the production protocol? What did defense counsel ask for in terms of forms of production? Have we been talking to stumps these last decades?
I wondered about the production protocol too, Craig. Either they didn’t have one or defense counsel didn’t read it. Looks like someone needs a copy of your Forms of Production guide!