[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
“These types of disputes tend to make a court wonder, which of the court’s other cases the requesting party feels deserve to be put on the back burner in favor of theirs.” Dale v. Deutsche Telekom AG, 2024 WL 4416761, at *4 (Oct. 4, 2024).
The plaintiff moved to compel use of its proposed custodian list by defendant, T-Mobile. The Dale court explained: “The present discovery dispute is about whether three custodians – out of a list of fifty – must be included as part of the defendant’s discovery inquiry. All three of the disputed custodians are in-house counsel for T-Mobile.” Id.
The present impasse came after six months of negotiations.” Id.
One good question is why the parties allowed the matter to drag on for so long. See When Must a Motion to Compel Be Filed? – Part 2 (Sep. 6, 2024) (the Turner court wrote that Turner waited too long to move to compel because a negotiating impasse triggered the duty to file such a motion); Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024).
Initially, defendant T-Mobile proposed a list of 29 custodians. Six weeks later, plaintiffs counter-proposed twice as many. Plaintiffs’ list included at least four T-Mobile attorneys. T-Mobile waited six weeks – – see the pattern? – – to respond, and the parties then met to confer.
T-Mobile was willing to add 10 of the plaintiffs’ additional 31 custodians, but not the attorneys. The plaintiffs, in the court’s words, “would not budge.”
And, the Dale court wrote that“[t]he haggling continued.” Id. T-Mobile agreed to add one more custodian, but not the attorneys because, it argued: most of their documents would be privileged; they purportedly had little relevant information; and, if they did, the plaintiffs could get it from the other 40 custodians.
The court wrote: “Plaintiffs offered to drop one of the four lawyers from their proposal. Defendant then offered to agree to 50 custodians if plaintiffs would simply drop the attorneys. That was unacceptable to the plaintiffs and so the negotiations continued. In exchange for keeping the three lawyers on the list – Ham, Miller, and Nelson – plaintiffs offered to drop three non-lawyers, keeping the total at 50. The defendant had already agreed to plaintiffs’ demand to double the number of custodians, so dropping three of those extra names in exchange for the three lawyers was not much of a compromise, if it could be called one at all. But, plaintiffs simply would not budge on the three lawyers, and so the parties’ dispute proved unsolvable. They have applied here for resolution.”
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.”
In Fleury v. Un. Pac. R. Co., 2024 WL 1620613 (N.D. Ill. Apr. 15, 2024), the court wrote: “Courts have vast discretion in resolving discovery disputes and that often means there’s no right or wrong answer.” See There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).
The Dale court reached a similar conclusion. It noted that discovery decisions are discretionary and:
Discretion, it cannot be too often emphasized, denotes the absence of hard and fast rules…. Being a range, not a point, discretion allows two decision-makers – on virtually identical facts – to arrive at opposite conclusions, both of which can constitute appropriate exercises of discretion…. After review of the parties’ submissions, it has to be said that the discretionary needle points in the defendant’s favor.
Id. at *1 (emphasis added).
It wrote:
[J]ust because counsel in this case insist that there are 50 or 60 stones to be looked under, does not mean they get to look under every one of them…. First of all, frankly, fifty custodians is a lot. And, it’s really a lot when they are essentially all of the requesting parties’ choosing…. Even without the three attorneys, fifty custodians is quite a lot – to say the least. Indeed, some might even say it is too many.
Id. at *2-3 (emphasis added).
After pointing to plaintiffs’ failure to address proportionality or sufficiently demonstrate the importance of the issues at stake in the action, id. at *3, the court wrote:
And, certainly, it is naive to think that the discovery that is being sought in this case from several attorneys would not be time-consuming and costly – and not just for the immediate parties. Obviously, privilege claims as to documents from the lawyers would far exceed privilege claims as to non-attorneys. There would be a privilege log for each lawyer – their files total 442 gigabytes. How many pages would that be? Your results may vary, but it seems safe to say the number would be staggering. Each privilege log would undoubtedly be huge. And, it would be a legitimate prediction – based on experience with class action discovery and privilege logs – that plaintiffs would challenge most, or at least, many of the claims of privilege. Perhaps rightfully so; perhaps not. But it is certain that, regardless, the parties would be back in court, with an extensive dispute, demanding an in camera review – a process which is not only time-consuming and burdensome, but all too often not terribly accurate as the process is conducted blind since a court can never fully grasp the context of the hundreds or thousands of documents under consideration.
Id. at *3 (emphasis added).
“[D]iscovery demands are not permissible merely because a lawyer has a desire for information.” Id. at *4. Discovery has boundaries and plaintiffs’ motion was held to have exceeded them. “When the foregoing is weighed on the ‘proportional-to-the-needs-of-the-case’ scale, the balance tips decidedly over to the disproportionate side – especially given the unpersuasive arguments regarding the relevance of the discovery from the three lawyers.” Id.
There would be a privilege log for each lawyer – their files total 442 gigabytes. How many pages would that be? . . . But it is certain that, regardless, the parties would be back in court, with an extensive dispute, demanding an in camera review – a process which is not only time-consuming and burdensome, but all too often not terribly accurate as the process is conducted blind since a court can never fully grasp the context of the hundreds or thousands of documents under consideration.
Dale v. Deutsche Telekom AG, No. 22 C 3189, 2024 WL 4416761, at *3 (N.D. Ill. Oct. 4, 2024).
The court took a deep dive into the facts and concluded that two of the lawyers were involved prior to acquisition by merger and this case involved post-acquisition facts. It wrote that plaintiff “does not have much to say” about a third lawyer. As to the fourth lawyer:“Plaintiff does add that Kathleen Ham had some influence on pricing post-merger…, but from the looks of the job titles on the fifty-person list, so would a lot of others.” Id. at *5.
In conclusion:
All things being considered, fifty custodians certainly provide a reasonable opportunity – at the very least – for the plaintiffs to reasonably investigate their case. Adding three or four in-house counsel to that list is out of proportion to the needs of the case. The aphorism, “the book is not worth the candle” is not out of place here.
Id. at *5.
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