A Judicial Love Bite: Initial Disclosures Mean Initial Disclosures

Civil Procedure, e-Discovery, Electronically Stored Information, Email, ESI, Initial Disclosures, Supplemental Disclosures

Every now and then, rules with teeth will leave a love bite.  This is one of those cases. 

The Plaintiffs identified 31 documents in their initial disclosures.  However, none of these were produced because of a claimed computer crash.  Pinkney v. Am. Med. Response, Inc., 2010 U.S. Dist. LEXIS 56465, 1-3 (D. Nev. May 12, 2010).

The Defendants in turn brought a motion to compel.

 

Rules for Disclosures

Pursuant to Federal Rule of Civil Procedure Rule 26(a)(1), a party must produce “a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party . . . may use to support its claims or defenses. . .”  Pinkney, at *7. 

A party must also supplement or correct their initial disclosures if they learn their original disclosure is incomplete or incorrect.  Pinkney, at *7, citing Federal Rule of Civil Procedure Rule 26(e)(1). 

The failure to follow Rules 26(a)(1) and 26(e)(1) can take your arm off; these rules have razor sharp teeth. 

Federal Rules of Civil Procedure Rule 37(c)(1) punishes those who fail to comply with Rule 26 by forbidding the trial use of any non-disclosed information.  Pinkney, at *7. 

A Judicial Nibble

The Court ordered the Plaintiffs to produce the information identified in their Rule 26(a) initial disclosures.  If they did not, the Plaintiff could not use any of the information themselves.

Bow Tie Thoughts

As the Def Leppard classic goes, Love Bites.  So Does Federal Rule of Civil Procedure Rule 37(c)(1).

The failure to disclose or supplement discovery is a sure fire way for a judge to show his dorsal fin and take a bite out of a party.  Hard drive failures are not uncommon and parties are well served by preserving their electronically stored information with any of the commercially available products that can do a targeted collection. While some might claim this is “expensive,” so is motion practice that still ends with you having to produce the data.

  1. I’ve been removed to federal court a few times lately, so your articles on discovery have been helpful. Thanks.