The oft-quoted phrase that “fools rush in where angels fear to tread” is generally understood to mean that wiser people are more cautious. Whether one agrees with this premise or not, a few recent decisions out of the federal courts regarding attorney conduct suggest that the federal bench follows this principle and is quick to either deny a “fool” relief or sanction him accordingly. For purposes of this posting, we will refer to a fool as one who does not exercise caution to carefully follow the federal rules of civil procedure.
In Simms v. Center for Correctional Health and Policy, 272 F.R.D. 36 (D.D.C. 2011), the Court denied defense counsel’s motion for sanctions arising from plaintiff’s failure to appear at her deposition. The facts are simple. Defense counsel properly noticed a deposition, plaintiff and her counsel failed to appear, and defendant sought sanctions under Fed.R.Civ.P. 37(d)(1)(A)(i). Id. at 38. Defendant’s counsel, however, failed to follow the very rule under which he sought sanctions, and the Court denied the motion.
Fed.R.Civ.P. 37(d)(1)(B) requires that “A motion for sanctions for failing to appear … must include a certification that movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.” Here, the movant stated that “undersigned counsel has not received any communication from plaintiff’s counsel regarding her and plaintiff’s absence.” Id. at 39. The court noted that “The Rule requires that defendant affirmatively reach out to plaintiff to try to resolve the issues.” Id. The court found that the movant had taken no affirmative steps to confer with opposing counsel about her failure to appear at the properly noticed deposition, and thus denied the motion or sanctions. Id.
Another case highlighting the idea that it is foolish to not stay informed on the federal rules of civil procedure is Bullion Monarch Mining, Inc. v. Newmont USA LTD, 271 F.R.D. 643 (D.Nev. 2010). This case involves a classic discovery dispute over production of documents. Again, the facts are straightforward. Defendant marked 25,000 pages of discovery as confidential, and through a series of delays, mishaps, employee issues, holidays, and inattention, defense counsel did not produce its privilege log (which had 1,126 entries) until after the close of discovery. Id. at 646-647.
Plaintiff asked the Court to find that defendant’s delay constituted a waiver of the assertion of privilege. The Court applied the “holistic reasonableness test” articulated in Burlington Northern & Santa Fe. Ry. Co. v. U.S. Dist. Court for the Dist. Of Mont., 408 F.3d 1142 (9thCir.2005). The four factors are:
- The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged;
- the timeliness of the objection and the accompanying information about the withheld documents;
- the magnitude of the document production; and
- other particular circumstances of the litigation that make discovery unusually easy or unusually hard.
After analysis of these four factors, the Court held that the defendant’s delay in producing the privilege log was not justified and ruled that defendant had waived its claims of privilege. Newmont, 271 F.R.D. at 650. The court stated:
Newmont delayed production of the privilege log, rendering it useless for its intended purpose. There is no conceivable way that Bullion (Plaintiff) can review 1,126 entries, compare them with deposition testimony of numerous witnesses, and review the thousands of documents produced to challenge the log entries, get a hearing and decision from the court, and then supplement its oppositions to dispositive motions, all by August 30, 2010 (the date ordered for Plaintiff to supplement its opposition to defendant’s dispositive motions). Id.
The conclusion from this ruling is again that it pays to understand the rules and how they are applied. While the holistic reasonable test relieves a practitioner from the 30 day deadline of Fed.R.Civ.P. 34 by which to raise its privilege claims, counsel must still be cognizant of how the federal courts address circumstances where the rule is not strictly applied.
So, although it may be difficult for most practitioners to be angelic, it nevertheless pays to be wise and know the rules of civil procedure.
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