It seems appropriate to discuss case law related topics on the EDRM blog, since they host the monthly case law webinar that I moderate with excellent observations from Tom O’Connor (Director of the Gulf Legal Technology Center), Mary Mack (CEO and Chief Legal Technologist of EDRM) and Hon. Andrew Peck (Ret.), Senior Counsel at DLA Piper. Our webinars are fun and informative, and I always learn something from Tom, Mary and Judge Peck.
One of our favorite judges to cover is Illinois Magistrate Judge Jeffrey Cole. His rulings are always entertaining, he sometimes works cultural references into them, and he pulls no punches when it comes to how he views lack of cooperation and other failures in eDiscovery. In a little over two years, eDiscovery Today has already covered seven of Judge Cole’s rulings (the most of any judge so far). With that in mind, here are notable Judge Cole observations from three of the “magnificent seven” rulings we have covered (three others will be covered in part two of this series).
One of our favorite judges to cover is Illinois Magistrate Judge Jeffrey Cole. His rulings are always entertaining, he sometimes works cultural references into them, and he pulls no punches when it comes to how he views lack of cooperation and other failures in eDiscovery.
Doug Austin, Editor of eDiscovery Today
Saleh v. Pfister: You’ve gotta love a court opinion that includes both a waiver of boilerplate objections and a quote from Ron Burgundy. After defense produced its entire production – 4 pages of documents – and plaintiff’s counsel speculated that defendant had either not conducted a good faith search or had destroyed documents, Judge Cole stated: “Once the charge of spoliation was made, things, to quote Ron Burgundy, ‘really escalated quickly.’”
He also addressed the defendant’s objections to the plaintiff’s discovery requests with a recurring theme he has discussed in subsequent cases as well: “First things first. Time and time again, attorneys are warned that boilerplate objections are unacceptable. They are tantamount to not making any objection at all…Nonetheless, IDOC’s responses are replete with them.” In ordering the defendant to produce all documents and a witness for a 30(b)(6) deposition, he also stated: “The conduct of defendant’s lawyer is troubling even in these overly and needlessly contentious times and it served no legitimate purpose or helped to achieve any worthy end.”
Gross v. Chapman: In this case where the parties’ dispute stemmed over a wedding called off, the bride’s family sued the groom’s family over wedding expenses that had been spent to date by them, Judge Cole summed up the dispute this way:
tral RR Co.: Here, Judge Cole addressed the parties lack of cooperation on both ends, stating in response to a motion to compel: “Here, as always, merely ‘saying so doesn’t make it so.’… So too in a discovery context. Courts will not accept mere suspicion or speculation that ‘there must be more.’ Hunches don’t count… If the rule were otherwise, discovery – long and tedious as it often is – would never end.” He also chastised the defendants for “boilerplate” objections, stating that “boilerplate objections are tantamount to making no objection at all” and stating that the plaintiff’s discovery was “targeted”.
Bierk v. Tango Mobile, LLC, et al.: Judge Cole noted at the beginning of the order to resolve the dispute over defendant’s 30(b)(6) witness deposition: “At seemingly every turn, the parties in this case have struggled with discovery. In the last two months, the parties have done their best to monopolize the court’s attentions, filing motion after motion regarding their problems getting through rather routine matters in what appears to be a rather unexceptional contract dispute.” He also noted: “Proportionality, like other concepts, requires a common sense and experiential assessment.”
Noting that “neither side followed the procedures they were instructed to follow multiple times”, Judge Cole resolved the dispute over defendant’s 30(b)(6) witness deposition by allowing the plaintiff two hours of additional deposition time with the defendant’s witness.
Judge Cole’s rulings illustrate a common theme in litigation today – lack of cooperation and judges’ growing frustration with it. I’ll cover some of his notable comments on the last three cases in the conclusion of this two-part series later this week!
[Editor’s Note: Post edited 8/10/2022]
Speaking of eDiscovery case law webinars, our May 2022 EDRM case law webinar will be on Tuesday, May 24th at 1pm ET! Hope you can join us!
Read more of Doug Austin’s great work on his eDiscovery Today Blog.
