[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
It is not auspicious when a court writes: “The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2 meet-and-confer sessions for the court’s review. Given the history of this case, and the tone of some of the briefs over the course of that history, it does boggle the mind to imagine what must go during these sessions.” U. S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at *1 n. 2 (N.D. Ill. June 17, 2024).
Given the massive amount of pages of briefs and exhibits the parties have tended to file in this case in nearly every other instance, the court assumes that explanation was given with tongue firmly in cheek and the court appreciates plaintiffs’ counsels’ joke. There is nothing wrong with a little humor to provide a break in the monotony of this long and tedious discovery war.
U. S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at n.14 (N.D. Ill. June 17, 2024).
It is also a red flag when the court notes: “Since February of 2023, there have only been rare and brief occasions when the parties did not have some discovery dispute before the court.” Id. at n. 3 (emphasis in original).
The two judges authoring Gill v. CVS wrote that: “There is no need to waste much time parsing and sifting through the parties’ back and forth regarding each of the nearly two dozen questions and responses the parties have asked the court to look at for them. Life is short.” Id. at *5. The court explained that it would not engage in “hand holding” and the opinion was to provide “a good taste of the whole rather unsavory pie the court has been served all along.” Id.
Nor is it a positive development when that court wrote:
Things have never exactly moved along at a break-neck pace in this litigation. [The parties]… are already engaged in cleaning up a couple of other extensive, post-discovery-deadline messes – there’s a Greek myth about stables that comes to mind – involving the defendants’ massive, 20,000-entry privilege log and the defendants’ claims of privilege….
Id. at n. 1.
And: “It’s not uncommon for tempers to grow short when a case drags on and discovery drags on, and that goes for judges and magistrate judges as well, although neither Judge Seeger nor I can file motions for leave to withdraw when we’ve had enough.” Id. at n. 4.
While both[1] sides were taken to task, the court wrote:
The plaintiffs’ attorneys tend to be a bit wordy. Unfortunately so. After all, this case began back in September of 2018, with a 127-page, 659-paragraph Complaint which, three versions later, has ballooned into a 183-page, 828-paragraph tome, with another 150 pages of exhibits tacked on. The plaintiffs’ response to the defendants’ motion to compel runs along similar lines. Sure, it weighs in just under the 15-page limit, but it comes with 21 footnotes that are packed with over 100 lines of small-font text. That probably would have added 4 pages or more of 12-point font text. And, those footnotes are not merely casual asides; they encompass nearly all of plaintiffs’ cited legal authorities and accompanying discussions. Dropping so large and so significant a portion of your brief into footnotes certainly does not make it any easier to read and follow, so the ‘true purpose’ of all those footnotes obviously was to get around Local Rule 7.1.
Id. at n. 8.
The court added: “[P]laintiff’s twenty-one footnotes really were a deliberate attempt to get around Local Rule 7.1 – and perhaps aggravate the reader just a little bit. Try as it might, the court was not able to match that without a little cheating and a few more pages. In lieu of a sanction – which might have been a bit much – the court hopes to have conveyed the message that, as difficult as counsel may think this case is, we all must get to the next phase and that goal is not achieved by many-footnoted –and angry – submissions – from either side. Submissions like those from the plaintiffs do not make the task any easier.” Id. at n. 21.
Perhaps injecting a bit of humor, the court responded: “And yes, the court has taken no small amount of inspiration from the style of the plaintiffs’ response brief throughout this Memorandum Opinion and Order. Plaintiffs might consider the court’s extensive use of footnotes in this Opinion as a very mild, oblique sanction in the hopes of inspiring the plaintiffs to take the page limit seriously next time – as courts continually admonish the parties that they must. Page limitations are not to be ignored or evaded.” Id. at n. 9.
Where plaintiffs explained that they attempted to shorten their filing, the court wrote: “Given the massive amount of pages of briefs and exhibits the parties have tended to file in this case in nearly every other instance, the court assumes that explanation was given with tongue firmly in cheek and the court appreciates plaintiffs’ counsels’ joke. There is nothing wrong with a little humor to provide a break in the monotony of this long and tedious discovery war.” Id. at n. 14.
It added:
“It is not out of line to ask counsel to spare a thought for the folks they expect to decide their cases and resolve their discovery squabbles. But, as the court has sifted through page after page of the parties’ seemingly endless submissions regarding their many extensive discovery disputes, the thought has occurred – many times – that a fitting soundtrack to all this might be Cannonball Adderley’s 1966 recording of Joe Zawinul’s ‘Mercy, Mercy, Mercy.’ One is left with the disquieting feeling that all too often the idea is to confuse, not to enlighten.”
Id. at n. 16.
The court wrote that: “[T]he impression is, once again, that the plaintiffs’ motivation is to make things difficult.”
Wow! So, what was this all about? “The main topic here is ‘contention interrogatories’…. Obviously, after years of government investigation and years of discovery, no one can say the contention interrogatories at issue here are premature.” Id. at *2.
Defendants had moved to compel discovery responses. The court ordered: “The plaintiffs shall provide proper, straightforward, non-prolix, non-referential answers to the defendants’ interrogatories as explained in the following memorandum opinion and order in thirty days.” It explained that discovery had been an “ongoing struggle” in this 5 ½ year old qui tam case.
When plaintiffs responded to discovery, “defendants thought their responses were such that they merited a nine-page, single-spaced ‘deficiency’ letter.” The court added: “Defendants probably rue the sending of that letter because it prompted the plaintiffs to provide responses so lengthy that the defendants found it difficult to find actual answers to their interrogatories embedded therein. At that point, the defendants tell us, the parties met and conferred twice regarding their nearly two dozen disputes….: Id. at *1.
After two hearings, the parties agreed to try to work things out, “[b]ut here we are, looking at 23 pieces of discovery that the parties have been unable to reach any type of an accord over since way back in August 2023. Based on their status report of May 2, 2024, they haven’t even tried.” Id. at *2.
The court explained that: “A large portion of the parties’ dispute has to do with what a contention interrogatory can ask for. The basic idea of contention interrogatories is to require a party to commit to a position and to give support for that position.” Id. at *2. What is permissible in such interrogatories “falls along a broad spectrum….” Id. at *3.
The court found that “the plaintiffs’ objections [to the contention interrogatories] are, in the main, out of line.” Id. at *3.
Contention interrogatories are permitted to request legal theories and the application of law to facts. Id. at*4. The Gill v. CVS court quoted the 1970 Advisory Committee Note to Rule 26(b) in direct support of that holding. It held that it was proper to ask for identification of all employees who were involved in the occurrence at issue.
Anyone can see that the plaintiffs’ answer ought to have been, as the defendants contend, a list of names of current or former employees. That’s a “no-brainer.” But plaintiff’s “answer” was a lot more than that. Astonishingly, it was a nine-page document and that reads – improperly – very much like a summary judgment motion. It cannot seriously be argued that what plaintiffs have provided was a proper, straightforward, reasonable answer to a proper, straightforward question.
Id. at *6.
The court noted the “tensions” between counsel, but added: “[I]t would have been refreshing – but, again, given the history of this case, unlikely – had the plaintiffs been succinct or straightforward.” Id. at *7. It wrote that the names could have been highlighted and the court added: “Think about that for a moment. That means the plaintiffs knew what a proper answer would have looked like – a list of names of current or former employees – yet made a deliberate decision not to provide one.” Id.[2]
Nevertheless, the plaintiffs have some work to do and are going to have to clean up and supplement the answers they provided, and do it properly, without vitriol – which is never helpful and always off-putting to the judge who is forced to read it.
U. S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958 (N.D. Ill. June 17, 2024).
Of course, there are countervailing considerations regarding the scope of contention interrogatories: “That being said, it doesn’t mean the propounding party must be allowed to ‘go crazy.’ Courts have the obvious and necessary discretion to rein in parties from asking for every fact and piece of evidence that supports a contention. It is generally enough that a responding party offers the principal or material facts that support its contentions.” Id. at *5. It added: “Nothing more than material or principal facts should or will be required from the plaintiffs here. Nevertheless, the plaintiffs have some work to do and are going to have to clean up and supplement the answers they provided, and do it properly, without vitriol – which is never helpful and always off-putting to the judge who is forced to read it.” Id.
Further, the court noted one shortcoming of contention discovery: “Plaintiffs’ contention is their contention. It does not have to satisfy the defendants’ competing theory of the case.” Id. at *5 (emphasis in original).
One advantage of contention interrogatories is that they cannot be answered with a “document dump.” Id. at *9. “A number of courts have held that, although Fed.R.Civ.P. 33(d) allows parties to respond to interrogatories by referencing business records, that doesn’t apply to contention interrogatories.” Id.
In n. 6, the court criticized counsel and wrote that the case had taken on a “playground feel….” To summarize:
[M]uch of what the plaintiffs complain about in terms of burden and “regurgitation” stems from the reality of filing an 828-paragraph Complaint which was, after all, no one’s choice but the plaintiffs. Would it be a bit time-consuming? Sure, but it’s not “silly” or “risible” as the [plaintiffs] seems to think, and the relator has had these interrogatories since last Summer. What it would result in is an Answer that is organized, self-contained, and easy to follow. But that is precisely what an Answer should be, especially in a complicated, messy case. A little organization goes a long way. Indeed, it is indispensable if one truly cares about messaging and being understood. While a plaintiff may not want to make things easy for their opponents, what about the court and, perhaps at some point in the future, a jury? The goal of intelligibility should never be forgotten.
Id. at *8 (emphasis added).
“[T]he plaintiffs have chosen to file an 828-paragraph Complaint and at some point, one way or another, those 828 chickens come home to roost.” Id. at n. 17.
Cooperation and good faith negotiations are critical in discovery. The Gill v. CVS court noted that “[t]wo courts, faced with similar circumstances could limit or allow contention interrogatories in completely different manners and both be ‘right.’” Id. at n. 5. It added:
That’s why it’s very often a futile gesture to draw a line in the sand and cling to a position in a discovery dispute. Contention interrogatories are no exception.
Id.; accord There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024)
In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”).
The Gill v. CVS court’s solution was to recommend cooperation:
At the risk of eliciting eye-rolls from both sides’ litigation teams that would be all but audible, let me suggest that it might be a good idea to sit down and go through these interrogatories together with the goal of arriving at answers that are perhaps not perfect but acceptable – and not merely to go through the motions. Yes, everyone has grown weary of discovery in this case and weary of meeting and conferring and weary of discovery motions and briefs and weary of court orders and opinions expressing weariness; remember all those declarations filed back in February. The court does not relish the prospect of having to go over plaintiffs’ answers to these interrogatories, and defendants’ complaints about those answers, again. And so, in conclusion, and circling back to footnote number 16, the court asks the parties and their counsel for a little “Mercy, Mercy, Mercy.” [emphasis added].
“Perfection” has never been a reasonable goal. What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?” (July 15, 2011)
This blog is a follow up to Sometimes Discovery Disputes Do Not Bring Out the Best in Us (Apr. 10, 2024)(“Both of the disputing litigants were ordered to state under oath that they had produced all responsive documents in a decision in which the court granted in part and denied in part a motion to compel.”); see Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024); What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024).
Notes
[1] For example, defendants’ requests without time limitations were overbroad. Id. at *11.
[2] “[T]he proper answer to Interrogatories Nos. 6 and 1 would have been nothing more than a list of names. But, again, the plaintiffs’ answer went well beyond that, and not in a good way. Indeed, at certain points in the plaintiffs’ improper, legal-memorandum-style answer, the reader is directed to clusters of Bates-numbers.” Id. at *8.
