Discovery Resources

Failure to Cooperate Fully in the Discovery Process May Result in Sanctions

By Patrick J. Ryan

In re Seroquel Prods. Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007)

Employer/Employee Implicated: Counsel

eLesson Learned: A party’s counsel should cooperate fully with the discovery process to ensure that it will not incur sanctions on behalf of itself or the party. This requires, at the very least, that the party’s counsel provide all relevant, requested documents and information in both a timely fashion and useable format. Above all, counsel must bear in mind that discovery is in no way meant to be an adversarial process.

The plaintiffs in this case sued the defendant for injuries alleged to have been caused by use of a drug manufactured by the defendant. Much of the court’s opinion involved the conduct of the defendant’s outside counsel during the pre-trial discovery process. Following a number of status conferences before the court, counsel for both the plaintiffs and the defendant proposed a joint motion to adopt two proposed case management orders. The joint motion claimed it was “the stated policy of [defendant’s] counsel, and its client . . . to get to [the plaintiffs’] counsel in a timely manner and in a format useable the necessary production documents that the [plaintiffs] will need to help them develop, evaluate, and understand their cases.” As the court noted, however, the defendant clearly ignored this policy.

In January of 2007, the judge presiding over the case entered case management orders setting forth the undertakings and obligations of both parties throughout the discovery process (the “CMOs”). When the defendant failed to comply with the CMOs, the plaintiffs moved the judge to compel the defendant’s cooperation. The judge denied the plaintiff’s motion without prejudice, but only to allow the parties time to confer with each other “in good faith.” To encourage cooperation, the judge also set an evidentiary hearing on the matters in the future, alerting both parties to expect sanctions if “any unreasonable or inappropriate conduct or position” made the scheduled hearing necessary. When the parties later informed the court they had settled their disputes, the court cancelled the hearing. Less than a month later, though, the plaintiffs moved the court to sanction the defendant for failing to meet its obligations under the CMOs.

The plaintiffs claimed, among other things, that the defendant and its counsel had violated the CMO by (a) refusing to produce electronic information in usable (i.e., searchable) forms, (b) failing to produce organizational charts and to identify relevant databases in a timely fashion, and (c) failing to produce numerous documents and information covered by the CMO. The defendant, on the other hand, denied the plaintiffs claims but argued the motion for sanctions should be dismissed primarily on procedural grounds because there had been no motion to compel, no proper request for the documents and information, and no prejudice to the plaintiffs for any delay that the defendants may have caused. Furthermore, the defendants argued sanctions were unwarranted because its discovery shortcomings were not the result of bad faith.

The court, however, disagreed with both of these arguments. As for the defendant’s procedural arguments, the court noted the absence of an order compelling production might make a default judgment an inappropriate remedy, but would not by itself invalidate the imposition of sanctions against a party. “A party,” the court explained, “will not be permitted to gain an advantage by agreeing to cure the discovery violation, then fail to implement the cure, and hope to avoid a sanction by forestalling the sanctions ruling.” Because the plaintiffs and the court already had given the defendant and its counsel adequate notice of both their failings in the discovery process and the potential consequences for such behavior, the sanctions were an appropriate remedy. The plaintiffs both formally and informally requested documents and information from the defendant, but the defendant’s counsel continually delayed. The plaintiffs, the court concluded, should not have been expected to endure such “sluggish behavior.”

The lesson here is that a party’s counsel should fully cooperate with the other side in effectuating the goals of the discovery process. Primarily, this requires counsel to provide documents and information in both a useful form and a timely fashion. Otherwise, attorneys might make themselves amenable to sanctions.

Patrick Ryan is a third-year law student at Seton Hall University School of Law.

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