Discovery Karma

May 24, 2011

Rarely a day goes by that a Reference Attorney isn’t asked to jump into the thick of discovery practice, searching for cases to cement a motion to compel or justify the imposition of sanctions. Most seek florid federal circuit court language finding abuse of discretion for imposing or failing to impose sanctions or which drives home what so very few circuit opinions will do – find that lawyers who don’t follow the rules should (or should not) be punished in the strongest manner possible.

That there are so few helpful circuit level opinions concerning discovery abuse is no great secret; these decisions are interlocutory. Further, circuit courts are loath to mediate smaller discovery battles preferring to reserve their energies for ultimate issues. On the other hand, while district courts are certainly in the best position to observe (suffer) conduct and are granted considerable discretion in these matters, they tend to shy away from the harshest of sanctions – dismissal or default judgment  – opting instead to verbally dispense discovery rulings and/or find a path to the merits. The end result is a very shallow pool of federal case law on dismissal as an appropriate sanction for discovery abuses.*

Enter Judge Gorsuch from the Tenth Circuit. With his decision this month in Lee v. Max International, LLC (2011 WL 1651640), U.S. Judge Gorsuch has provided front line discovery warriors language to sink their teeth into:

“How many times can a litigant ignore his discovery obligations before his misconduct catches up with him? The plaintiffs in this case failed to produce documents in response to a discovery request. Then they proceeded to violate not one but two judicial orders compelling production of the requested materials. After patiently affording the plaintiffs chance after chance, the district court eventually found the intransigence intolerable and dismissed the case as sanction. We affirm. Our justice system has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.”

Lee v. Max Int’l, LLC, 10-4129, 2011 WL 1651640 (10th Cir. May 3, 2011).

Upholding dismissal as a sanction, Judge Gorsuch explains in very specific terms when enough is enough and warns of the consequences of bad “discovery karma”:

Plaintiffs in this case were given no fewer than three chances … When a party feels at liberty to disobey not just a discovery request but two court orders compelling production of the same material in its control, weeks or months (as in this case) pass without progress in the litigation. Hours, days, weeks of lawyers’ time are consumed at great expense. Focus shifts from the merits to the collateral and needless. This is not speedy, inexpensive, or just. Just the opposite. And no doubt tolerating such behavior would encourage only more of it. But there is such thing as discovery karma. Discovery misconduct often may be seen as tactically advantageous at first. But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations. Or at least that’s what Rule 37 seeks to ensure.

Lee v. Max Int’l, LLC, 10-4129, 2011 WL 1651640 (10th Cir. May 3, 2011)

In the age of e-Discovery, where discovery maneuvering to gain tactical advantage and the resultant fights are becoming increasingly intense, lawyers seeking to shore their dismissal appeals will no doubt draw on Judge Gorsuch’s “three chances” language. Indeed, if you are up for another primer on what not to do in a discovery battle, check out this (2011 WL 1770468)  recent (and entertaining) bench-slapping out of the DC Circuit which quotes the Lee decision throughout.

*But, try these ideas. Circuit opinions concerning dismissal as a discovery sanction can be found by running the following search in federal circuit decisions (CTA):

DI(170AK1636 and DISMISS!)

The KeyNumber is for sanctions for failure to reply to discovery requests.  Try a more targeted search:

170AK1636 /P REPEAT! REGULAR! +3 COMPL! NON-COMPL! VIOLAT! REFUS! FAIL!