Communication and Cooperation (As Opposed to Confrontation)
By Shannon P. Hennessy
Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595275 (D. Md. Oct. 15, 2008)
Employee/Employer Implicated: Counsel
eLesson Learned: Do your research, tailor your discovery requests, provide a factual basis for your objections, and, above all, communicate and cooperate with your adversary when it comes to discovery.
In Mancia v. Mayflower Textile Servs. Co., the discovery dispute arose from a collective action filed by a group of employees for payment of wages under the Fair Labor Standards Act of 1938 and Maryland state laws. The plaintiffs served extensive discovery requests on the defendants. The defendants responded to a number of these requests with “boilerplate” objections.
Chief United States Magistrate Judge Paul Grimm wrote the opinion for this e-discovery dispute, providing broad principles that apply with any discovery process. He held that the defendants failed to sufficiently specify the grounds on which they objected to the discovery requests as required by Fed. R. Civ. P. 33(b)(2). Further, the court noted that the defendants most likely violated Fed. R. Civ. P. 26(g)(1) by failing to specify the grounds for their objections. Fed. R. Civ. P. 26(g)(1) requires discovery requests, responses, and/or objections to be formed after a reasonable inquiry into the factual basis. Additionally, by signing a discovery disclosure, request, response or objection, the signatory swears that it is consistent with the rules, not for an improper purpose, not unreasonable, unduly burdensome or expensive.
Judge Grimm expressed concern over the extensive nature of the plaintiffs’ discovery requests. He ordered the parties to meet and confer to determine a discovery budget reflective of what was at stake in the case.
The court reminded counsel that the rules impose an affirmative duty to “behave responsibly during discovery, and to ensure that it is conducted in a way that is consistent ‘with the spirit and purposes’ of the discovery rules …” This means that counsel should consider the cost and the burden of its discovery requests and offer a factual basis for objections. Further, the court notes that it has the ability to impose sanctions on counsel for violating the rules without justification. The court encourages attorneys to meet before propounding discovery to “discuss[ ] what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost-to all parties-is proportional to what is at stake in the litigation.”
An interesting aspect of Judge Grimm’s opinion is his praise for The Sedona Conference Cooperation Proclamation, a nonprofit, educational research institute and publisher of Best Practices Recommendations and Principles for Addressing Electronic Document Production. He notes the Sedona Conference’s Cooperation Proclamation, which encourages "a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery." The Sedona Conference, The Sedona Conference Cooperation Proclamation 1 (2008). He states that the goal of communication and cooperation is crucial for compliance with Fed. R. Civ. P 26. As a result, Judge Grimm’s opinion provides a solid legal footing for counsel to cite the Cooperation Proclamation when seeking cooperation from his adversary.
Overall, Mancia v. Mayflower Textile Servs. Co., reminds attorneys that they have an affirmative duty to take a cooperative approach to discovery and that the failure to do so can result in sanctions.
Shannon is a graduate of Boston College and is currently a third year student at Seton Hall Law.
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January 27th, 2009 at 2:14 pm
It’s interesting how common sense and common decency sometime get overlooked in the litigation process. Of course the parties would have been better off discussing what kinds of discovery requests were actually necessary for the case before requesting the moon. Unfortunately, in this case (and I’m sure in many others), the parties took the adversarial system too far. They ended up spending a lot of unnecessary time and money by requesting everything and objecting to everything. As Judge Grimm noted, the parties could have saved themselves a lot of aggravation (and money) if they thought before acting and sat down to discuss what was actually necessary.
January 28th, 2009 at 8:16 am
I wonder whether counsels’ reliance on boilerplate requests and objections was the result of inexperience with e-discovery and electronic information, in general. Many attorneys have little experience with the process and have relied primarily on discovery of “hard” documents throughout their careers. In this case, perhaps the attorneys were not so much uncooperative as they were uninformed.