Nothing says Christmas like an opinion by Judge Facciola.
Jenkins v. Wash. Metro. Area Transit Auth., is litigation over a train crash between two Washington Metropolitan Area Transit Authority trains. Jenkins v. Wash. Metro. Area Transit Auth., 2011 U.S. Dist. LEXIS 146065 (D.D.C. Dec. 19, 2011).
Like almost all litigation, the discovery dispute must have felt like a train wreck to the parties.
The discovery dispute can be summarized as follows: one subcontractor Defendant (hereinafter the Moving Party) brought a sanctions motion against another Defendant (Opposing Party), claiming they were prejudiced by the Opposing Party’s failure to produce certain information supporting the Moving Party’s defenses. Jenkins, at *23-24.
The Moving Party also brought a motion for summary judgment, based on the sovereign immunity afforded the Opposing Party because it was Opposing Party’s contractor. Jenkins, at *15.
In its initial disclosures, the Moving Party identified witnesses from the Opposing Party and documents that supported the Moving Party’s defenses. Jenkins, at *15-16.
The Opposing Party produced eight witnesses, allowed a site inspection of the Operations Control Center and produced 3,348,483 pages of electronically stored information. Jenkins, at *16. The Opposing Party produced 2,476,363 pages. Both productions were reviewed in a litigation support software. Id.
Additional discovery from custodians was later produced, including depositions and over 4,000 documents. Jenkins, at *17.
The co-Defendants shared an e-Discovery service provider. The Opposing Party represented that “it was not asked and therefore did not provide the names of the “custodians” of the produced discovery since it believed that [the Moving Party] had equal access to the names” of the custodians. Jenkins, at *14.
The Moving Party argued the late production prejudiced them, because if it “had the documents sooner it could have done additional follow up discovery during the discovery period and then used the documents produced and perhaps other information developed therefrom in the motion for summary judgment it has now filed.” Jenkins, at *18, citing the Moving Party’s Reply to the Opposition to the Motion for Sanctions.
Judge Facciola quickly, and with candid relief, stated at the beginning of his analysis:
There being no evidence of any loss of data, the complicated principles pertaining to preservation and spoliation do not, thankfully, have to be considered.
Jenkins, at *19.
The Moving Party claimed sanctions were appropriate because the Opposing Party did not comply with its initial disclosure obligations under Federal Rule of Civil Procedure Rule 26(a) by producing information related to the government contractor defense. Jenkins, at *19.
The Opposing Party countered that they were not going to assert the government contractor defense, thus they had no duty to produce information related to that defense. Jenkins, at *19.
The Moving Party argued in a footnote that Federal Rules of Civil Procedure require the production of requested documents that are relevant to “any party’s claim or defense,” not just those claims or defenses that pertain specifically to the producing party. Jenkins, at *20, citing Fed. R. Civ. P. 26(b)(1).
The Court quickly zeroed in on the difference between initial disclosures under Rule 26(a) verse the scope of discovery under Rule 26(b)(1). Jenkins, at *20. The Court noted that the Moving Party’s view of initial disclosures would amend Rule 26(a) as follows:
(A) . . . [A] party must, without awaiting a discovery request, provide to the other parties:
(i) the name . . . of each individual likely to have discoverable information-along with the subjects of that information-that any party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that any party . . . may use to support its claims or defenses, unless the use would be solely for impeachment;
As the Court noted, changing “disclosing party” to “any party” would “impose an extraordinary new obligation on the parties to a lawsuit…” Jenkins, at *21. The Court rejected this construction of Rule 26(a).
The Court found there was no sanction available under Rule 26(a). Jenkins, at *21. Further, there was no violation of a discovery order by the Opposing Party or any clear and convincing evidence of bad faith. Jenkins, at *22. Accordingly, the Court denied the Moving Party’s motion for sanctions. Jenkins, at *23.
Bow Tie Thoughts
Initial Disclosures require a party to identify all electronically stored information within its possession, custody or control to support any of its claims or defenses in a lawsuit. Fed. R. Civ. P. 26(a)(2). Additionally, a party must make their Rule 26(a) Initial Disclosures based on information “reasonably available to it.” Moreover, the failure to identify ESI that supports a claim or defense can result in the discovery being excluded from a case. Fed. R. Civ. P. 37(c)(1).
The prospect that initial disclosures could be read to apply to “any party” instead of the “disclosing party” is a sobering thought. It would tear apart the entire concept of requesting discovery like wrapping paper if a party had to disclose “any party’s” claims or defenses.
There are many benefits to informal discovery between parties and agreeing to production during a meet & confer. Moreover, there is an attorney’s overall duty of candor to the court to avoid making false arguments based on the information within one’s control. However, the prospect that a party need to review and disclose the ESI in its control that supports another party’s claims or defenses would add a new burden on litigants.