In Milne v. ProAll Int’l Mfg., Inc. No. 8:23-cv-02212-JVS-JDEx (C.D. Cal. May 12, 2025), California Magistrate Judge John D. Early denied Plaintiffs’ Motion for Sanctions against Defendants for failing to produce responsive ESI in a timely manner, finding that Plaintiffs violated the Local Rules by not following proper procedures and engaging in unprofessional behavior during the conference of counsel, which hindered the parties’ ability to confer in good faith.
Case Discussion and Judge’s Ruling
In this case involving claims for fraud and deceit, breach of implied warranty, unfair competition and more over the formation of a concrete supply company and sale of concrete mixing trucks, Plaintiffs filed a Motion for Sanctions, seeking issue and monetary sanctions against Defendants, as well as “an order appointing a neutral IT expert to image Defendants [sic] ESI devices and search for responsive ESI” or alternatively compelling Defendants to produce all responsive documents, with an accompanying Joint Stipulation with supporting and opposing evidence.
As Judge Early stated: “Local Civil Rules (‘L.R.’) 37-1 through 37-4 set forth the procedures for discovery motions in this Court. Under L.R. 37-1: Before filing any motion relating to discovery under F.Rs.Civ.P. 26-37, counsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It is the responsibility of counsel for the moving party to arrange for this conference…. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference. The moving party’s letter must identify each issue and/or discovery request in dispute, state briefly as to each such issue/request the moving party’s position (and provide any legal authority the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.”
He added: “If counsel are unable to settle their differences, they must formulate a written stipulation unless otherwise ordered by the Court… Courts may deny discovery motions for failure to comply with the Local Rules’ requirements for such motions.”
Plaintiffs claimed they complied with L.R. 37-1 through: (1) 15 emails and two “zoom calls” between counsel; (2) counsel’s provision “in lieu of the Rule 37-1 letter, a draft copy of the completed joint stipulation seven days before the final zoom meeting occurred, with all exhibits attached.” They also advised that, although their portion of the joint stipulation was submitted to Defendants before the final “zoom meeting” as “completed,” they “agreed to not serve the final version until after the meeting.”
In discussing Plaintiff’s motion Judge Early stated: “At that final March 28, 2025 ‘zoom meeting,’ Plaintiffs’ counsel directed ‘strong profanity’ at counsel for Defendants while meeting and conferring about the subjects of the Motion…Two of Defendants’ counsel submitted declarations attesting to the profanity by Plaintiffs’ counsel directed to Defendants’ counsel, including the words ‘f–king,’ ‘bullsh—t,’ and ‘God d—n’; counsel also attest that Plaintiffs’ counsel ‘yelled’ at Defendants’ counsel and acted in an ‘aggressive’ manner…One of Defendants’ counsel further attests that Plaintiffs’ counsel issued threats to ‘triple the [settlement] demand’ to make the suit impossible to settle if Defendants refused to comply with Plaintiffs’ counsel’s demands, telling one of Defendants’ counsel ‘I’m going to try this case because of you …. You pi–ed off the Plaintiffs’ lawyer …. You will pay for this.’…Plaintiffs’ counsel concedes he used profanity, but denies he used the specific profanity or threats alleged by Defendants’ counsel.”
Continuing, he said: “Plaintiffs have violated both the letter and the spirit of L.R. 37-1 et. seq. in connection with the Motion… under Local Rule 37-2, a moving party’s portion of a joint stipulation is not to be delivered to the opposing party until after the L.R. 37-1 meeting… Facially, Plaintiffs violated L.R. 37-1 et seq. by sending their “complete” portion of the joint stipulation before the March 28, 2025, “final” conference of counsel.”
Judge Early also stated: “Even were the Court to attempt to look past the name of the document ‘served’ be Defendants’ counsel to Plaintiffs’ counsel in advance of the final “zoom meeting” and consider only the substance, based on the Court’s review of the 77-page Joint Stipulation that was filed, Plaintiffs’ portion of the document does not comply with L.R. 37-1’s requirements for an initiating letter to counsel. As noted, the initiating letter must ‘briefly’ set fort the moving party’s position; here, Plaintiff’s portions of the Joint Stipulation…is anything but ‘brief.’ The more than 60 pages that make up Plaintiffs’ portion is largely a rambling, often repetitive, at times disjointed presentation, filled with accusations of a ‘cover-up’ by Defendants and/or Defendants’ counsel”.
Rejecting Plaintiffs’ unprofessional behavior, Judge Early stated: “in addition to violating the express terms of L.R. 37-1, et seq., Plaintiffs’ conduct here runs afoul of the spirit of the rule. As evidence, one need look no further than the conduct of Plaintiffs’ counsel at the ‘final’ conference on March 28, 2025. Having ‘served’ Plaintiff’s portion of a joint stipulation, totaling more than 60 pages, at least implicitly indicating an intention to proceed with a motion regardless of the outcome of the meeting, and filling it with accusations and name-calling rather then presenting a ‘brief’ recitation of the issues and Plaintiffs’ position and authority, counsel for Plaintiffs came in, proverbially loaded for bear, and unleashed what he admits was ‘strong profanity’ directed to Defendants’ counsel.” So, Judge Early denied the motion for sanctions.
So, what do you think? Should Defendants pursue sanctions for the unprofessional behavior of Plaintiffs’ counsel? Please share any comments you might have or if you’d like to know more about a particular topic.
Hat tip to Michael Berman for the previous coverage of this case!
Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.
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