Seriously, discovery is serious business.

Take Discovery Seriously

The court first directed the defendant to produce the file of the plaintiff’s insurance claim in 2007, and needless to say, even in 2014 the defendant still had not produced everything.  Over one year later, the court granted the plaintiff’s first motion to compel.  When a flood of documents appeared at a deposition in 2011, discovery was reopened and the defendant was sanctioned.  Another motion to compel was granted in 2012, and this time it was for the deposition of a representative of the defendant who could testify about the efforts the defendant had taken to respond to discovery requests.  Yet another flood of documents appeared, and the representative deposed was unable to describe any of the defendant’s discovery efforts.  The plaintiff moved again for sanctions, which were granted in 2013.  At that time, the court also granted the plaintiff the costs and legal fees due to the late production of documents.  As relevant here, before the court in this motion was the assessment of legal fees and another production request.  The defendant did not want to produce more documents because by this time the defendant said the emails were on backup tapes that were purportedly not reasonably accessible because of undue burden or cost.  Can you guess what the court thought of that argument?  We’ll get to that in a moment.

Without delving into specifics, the court painstakingly analyzed the plaintiff’s legal bill for the various motions, filings, etc. and awarded $81,997.60 in attorney’s fees.  Some of these costs were attributable to an IT specialist hired by the plaintiff that was to help the attorneys ask proper questions at the defendant’s representative’s deposition so they could ensure protocols were followed during discovery and that sufficient documentation was recovered (and if discovery was delayed because of an honest mistake, the explanation for that could be ascertained).  Even though the individual deposed actually had no knowledge of the defendant’s discovery practices, the defendants couldn’t escape paying for the IT specialist’s and attorney preparation time.

On top of the nearly $82,000 awarded in legal fees, the defendant said it would cost $200,000 to recover the backup tapes containing emails.  While the actual cost is unclear, the defendant was ordered to turn over eight weeks of tapes, at its expense, of the thirteen individuals the plaintiff identified.  The judge even left the door open for the the plaintiff to get additional discovery if further exploration is necessary.  However, this isn’t the end.

Sometimes, a single well-placed footnote can be unbelievably powerful.  This case illustrates just that, as the judge cleverly observed the defendant’s conduct as such:

[c]onsistent with Hartford’s approach to discovery in this case, it has spent more time and resources challenging two entries totaling 1 hour than the amount requested by the plaintiff for those entries.  The court trusts that Hartford’s attorneys will notify their client how much they incurred in attorneys fees on these two entries.

So please, take discovery seriously.

Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this?  Sign up for our post notification newsletter, here.

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