The Magnificent Seven, Part 2: More Blunt Observations from Judge Jeffrey Cole
Last time, I discussed one of our favorite judges to cover on the EDRM monthly case law webinar: Illinois Magistrate Judge Jeffrey Cole, who 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) and I discussed the first four in the last post. Here are notable Judge Cole observations from the other three rulings.
Berkeley*ieor v. Teradata Operations, Inc.: This ruling dealt with a timely issue in the era of the pandemic – in-person depositions. The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. But the plaintiff also refused to do consecutive days due to child custody issues for one of its attorneys, so the request and issues would require opposing counsel to make four 1800-mile airline trips between Chicago and California to support two in-person depositions a week apart, as the Delta variant of COVID was beginning to surge. The defendant objected to the trips a week apart and suggested the deposition could be completed remotely.
In response to the plaintiff’s request, Judge Cole stated: “For reasons that are all too obvious, as the Summer drew on – and by the time Berkeley filed its motion to compel on July 23rd – live depositions, which were an unnecessarily risky idea in the first place, became a bad idea. And the thought of multiple airline trips to take the depositions became a terrible and unacceptable one. The pandemic continues, and new cases and hospitalization numbers have again soared, as a more contagious and virulent variation of the virus is sweeping across the County – and the world – with terrifying results, causing some local governments to reinstitute restrictions on all facets of daily living.”
Continuing, he stated: “The wisdom under the present circumstances of a party demanding a live deposition of a witness and requiring opposing counsel to make four 1800-mile airline trips is questionable – to say the least. Not only the ‘optics,’ but the reality of the situation are even worse as the plaintiff is demanding two separate round-trips to California for the convenience of one of its attorneys…As indicated, this portion of Berkeley’s motion is denied.”
Stagger v. Experian Info. Sol., Inc.: Here, Judge Cole began by chastising both parties, stating: “A fair amount of the parties’ back and forth can be glossed over as it is clear the law firms are familiar with one another and not altogether cordial, especially given the tone taken on Experian’s side. Unfortunately, familiarity does seem to breed contempt, more so in litigation and especially in discovery. But not every case, and certainly not every little discovery spat needs to be treated as if it were Napoleon’s retreat from Moscow. In the case of discovery disputes, it’s a highly questionable strategy because once counsel abandons their responsibilities under Local Rule 37.2 and demands court intervention, it becomes a matter committed to the broad discretion of the court…Consequently, it behooves counsel to work things out on their own where possible.”
Regarding the plaintiff’s request for emails and document(s) related to Experian’s post-bankruptcy reporting scrub procedures and Experian’s privilege objection, Judge Cole stated: “Experian asserts a novel argument as why it did not have to comply with the rules and principles. It claims that, because it also generally objected on the grounds of relevance, that meant it did not have to comply with Fed.R.Civ.P. 26(b)(5) then and there…It asserts that if the court rules the documents at issue are relevant, it will then – only then – ‘collect those documents, [and] conduct a privilege review.’…In other words, according to Experian, it has yet to review the responsive documents. If Experian hasn’t gone over the documents, how could it claim they are privileged in its objections to the plaintiff’s document request back in July and, more importantly, how can it claim the are privileged in a brief filed in federal district court? The only answer is that those claims have been made in bad faith and, of course, cannot be upheld.”
Deal Genius, LLC v. 02 Cool, LLC: Here, Judge Cole highlighted another failure to cooperate, stating: “Rather than take the opportunity of settling their email dispute at or before the hearing, the parties chose to file briefs on the matter… The attorneys even disagreed over what happened between them at certain points in their months-long squabble. It is the attorney version of the children’s taunt, ‘I know you are but what am I?’ Unfortunately, it is all too common – and unnecessary…And seems to be even more common in discovery disputes like this one. As such, a tedious summary of counsels’ competing versions of what occurred is unnecessary – and unhelpful.”
Because of the lack of cooperation, Judge Cole put the dispute back in the parties’ hands, stating: “It should go without saying that months of arguing over five search terms, and then involving a court in that dispute in any event, would be out of proportion to the needs of many cases. But there can be no dispute that what has gone on thus far in this particular case is out of proportion with the needs of this particular case and the commands of good sense…The attorneys in this case are, essentially, at square one. They have not whittled their dispute down far enough for meaningful court intervention.” He also noted that selecting search terms that might assist in locating pertinent documents “is counsels’ job, not the court’s” and suggested in a footnote that the parties should consider engaging a special master to resolve the dispute instead of slowing down the court docket to have the court review hundreds of documents.
Judge Cole’s rulings are always entertaining and educational, so expect to see more of them in eDiscovery Today and discussed on the EDRM monthly case law webinar!
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 part one of the Magnificent Seven here, and experience more of Doug Austin’s great work at the eDiscovery Today blog here.
Follow Doug Austin on JD Supra here.
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