That great philosopher, Yogi Berra, once opined, “If people don’t want to come out to the ballpark, how are you going to stop them?” Ok, it might be a stretch to call Yogi a great philosopher, but he’s certainly one of the great thinkers of our time (even if he “didn’t say most of the things (he) said.”) Yogi was, of course, talking about baseball but he could just as easily have been talking about an attorney who was steadfastly unwilling to cooperate with the court. “If an attorney don’t want to cooperate, how are you going to stop them?” Yogi could have asked.
In a recent case before the District Court for the District of Columbia, Defense counsel asked the court for permission to produce documents after a trial. Now, you might think it’s absurd to even think about asking the court to consider allowing the submission of evidence after a trial has begun but in this case that’s exactly what happened.
The plaintiff class in this case had waited six years for the Court to decide whether they were entitled to relief for the District of Columbia’s failure to provide them with free public education as required by the Individuals with Disabilities and Education Act.
According to court documents, in the days immediately preceding the commencement of the trial the District continued to bombard plaintiff’s counsel with thousands of emails and said that the avalanche would continue on a “rolling basis” even after the conclusion of the trial.
On the first day of the trial the plaintiff’s counsel moved the Court to order the production of the rest of the emails within a week and hold that the District waive any objections (including privileges) to the documents. The Court asked defense counsel why the emails were coming to light after six years. Counsel responded by saying that the new emails were the result of a “supplemental search” that had yielded tens of thousands of emails that had to be reviewed for relevance and privilege.
In its decision the Court wrote: “Even after being called out in a Court order, the District – its head apparently buried in the sand – remained committed to its corrupt production strategy…The District’s decision to ignore the bulk of this Court’s…opinion explains, in part, why it continues…to implement its ill-conceived ‘rolling’ document production scheme…
“…Even after being recently sanctioned for discovery violations and despite benefiting from multiple extension of time, the District failed to comply with this Court’s order…Its bare discovery are just one of many reasons for the Court’s decision to order its privilege objections waived…The District has absolutely no excuse for its behavior in this case…If at any point the District realized that it was behind, or for any other reason could not comply with this Court’s Orders, it should have informed the Court of the problem…
“…The Court’s purpose in ruling that the District had waived privilege wasn’t limited to adjusting the District’s behavior. Instead, the Court sought to specifically deter the District from misbehaving in this way in the future and to generally deter other parties from doing the same by putting them on notice of the fact that this Court takes the Federal Rules’ discovery framework seriously.”
The behavior of the District can, at best, be described as abhorrent. Its eDiscovery strategy, if you can call it that, was questionable (at best). Is this an eDiscovery strategy your company could live with? Is it willing to risk the wrath of the Court?
The Memorandum Opinion was certainly more eloquent than anything Yogi could have written. But there’s no way its words could be misinterpreted. And more importantly, there’s no way anyone would ever chuckle at their meaning.