A Failure to Make Initial Disclosures

The Plaintiffs in Livermore v. Arnold failed to produce their initial disclosures by a Court ordered deadline. The Defendants sought production of the initial disclosures through email correspondence, only to have the Plaintiffs not respond to the disclosure request, but other issues in the email. Other attempts were also unanswered. The Defendants in turn brought a motion to compel under Federal Rule of Civil Procedure Rule 37. Livermore v. Arnold, 2011 U.S. Dist. LEXIS 59106, 1-2 (M.D. La. June 1, 2011).

The Plaintiffs did not file an opposition to the motion to compel their initial disclosures. Livermore, at *3.

Disclosure Obligations

Federal Rule of Civil Procedure Rule 26(a) requires parties must disclose the discoverable information that the disclosing party may use to support its claims or defenses. Livermore, at *4, fn 1. The Rule specifically requires:

(1) The name, address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(2) A copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(3) A computation of each category of damages claimed by the disclosing party; and

(4) For inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Livermore, at *4, fn 1, citing Fed. R. Civ. P. 26(a).

Federal Rule of Civil Procedure Rule 37(a)(3)(A) allows a party to bring a motion to compel and see sanctions against a party who does not make their initial disclosures. Livermore, at *4, citing Fed. R. Civ. P. 37(a)(3)(A).

Court Order

The Court ordered the Plaintiff to file their initial disclosure within 10 days. Additionally, the Plaintiffs were ordered to pay the Defendants’ attorneys fees and costs for bringing the motion to compel. Livermore, at *6-7.

The Court’s Order was based on Federal Rule of Civil Procedure Rule 26(a)’s mandatory requirement to provide their initial disclosures to support their claims or defenses. The fact the Plaintiffs did not respond to correspondence and the motion did not help their position. Livermore, at *5-6.

Bow Tie Thoughts

Case law has many examples of parties failing to disclose discoverable information that supports their claims or defenses. The failure to disclose such information means it is barred under Federal Rule of Civil Procedure Rule 37.

Determining such disclosures when there are 47,000 email messages is a significant challenge. Early Data Analysis tools can be very effective at narrowing this ESI to a manageable volume to decide which should be include in a party’s Rule 26(a) initial disclosures.

There are many products with these capabilities, such as the Nuix product suite or Lexis Nexis Early Data Analyzer.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

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