[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

A recent decision demonstrates the importance of following the Rules and the duty to cooperate, after a “quick peek” proved that an opponent’s discovery responses were incomplete.

The Court wrote: “Defendants’ responses to Plaintiffs’ interrogatories and requests for production of documents are vague and confusing. The Federal Rules of Civil Procedure and the Local Rules of this Court provide guidance to parties regarding how to respond and object to interrogatories and requests for documents, and, likewise, how to produce responsive documents and/or electronically stored information. Here, Plaintiffs have demonstrated that Defendants failed to adhere to these rules’ most basic requirements.” Brito v. New Life Healthy Living, LLC, 2025 WL 2638030 (D. Md. Sep. 9, 2025)(Crawford, J.)(emphasis added). The Court imposed sanctions, emphasizing defendants’ failures to cooperate and their “doubling down” on the defective responses.

THE RULES OF PROCEDURE ARE PRECISE RUBRICS

The rules of procedure are not “mere guides” or “helpful hints.”  Instead, they are “precise rubrics that are to be read and followed….” Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977).  “Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).

Rules of procedure are “the lawyer’s compass” used to “steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation and safely into the harbor of judgment.  It is the reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.” Colonial Carpets, 36 Md. App. at 584, 374 A.2d at 420-21.¹

THE ”QUICK PEEK” AGREEMENT IN BRIO DISCLOSED FLAWS

Brito is a collective Fair Labor Standards Act action. In Brito, plaintiffs noted “omissions and discrepancies in Defendants’ records relating to members of the collective. The parties agreed to coordinate an inspection by Plaintiffs’ counsel of Defendants’ records room to allow Plaintiffs’ counsel to locate and inspect relevant records, including Defendants’ personnel files.”  Id. at *1 (emphasis added).

I would call this a “quick peek” agreement.  So-called “quick peeks” by consent are permissible. Courts Cannot Order a “Quick Peek” Without Consent – E-Discovery LLC. The GAP Report to the 2006 Amendment to Fed.R.Civ.P. 26(b)(5) states that parties “may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protection–sometimes known as a ‘quick peek.’ The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A).”  [emphasis added].  Any “quick peek” agreement should be in conjunction with a Fed.R.Civ.P. 26 “clawback” agreement and a Fed.R.Evid. 502 non-waiver order.

Returning to Brio, after the “quick peek,” “[t]he Court held the next status conference on July 15. During that conference, Plaintiffs’ counsel summarized the July 2 inspection of Defendants’ records room and described locating several binders and other records responsive to Plaintiffs’ discovery requests that Defendants had not produced…. Defendants’ counsel, who did not attend the inspection on July 2, explained that Defendants had provided to Plaintiffs all documents and information available and had no additional responsive information.” Id. (emphasis added).

THE FLAWS IN DEFENDANTS’ RESPONSES

At the Court’s direction, plaintiffs filed a “Memorandum Regarding Defendants’ Deficient Discovery Production and for Sanctions and Other Relief.”

The Court found that “Defendants’ discovery responses are woefully inadequate.”  Id. at *2.  The Court referred to its “Principles of Discovery of Electronically Stored Information.”² “These principles encourage counsel to discuss and agree to a naming convention and numbering system, like Bates numbering, for the identification and production of records.” Id.  However, defendants produced 12,000 pages of records that were separated into more than 100 sets of “improperly numbered PDFs.” Id. That violated Fed.R.Civ.P. 34(b)(2)(E)(i).³

Further, the Court wrote that “Defendants’ responses to Plaintiffs’ requests for production of documents are imprecise and incomplete. In several responses, Defendants do not clearly state whether they will produce documents at all.”  Id. at *2. The Court deemed “vague and no-committal responses” to be improper. Id.

Additionally, “Defendants indicate that responsive documents have already been produced but fail to specifically identify those documents by a production date or Bates number, leaving Plaintiffs with no straightforward way to track the documents produced to their corresponding requests.”  Id. at *3.

The Brio Court added: “The Court is also troubled by the form and substance of Defendants’ written responses. Many of the responses are grouped together and written in incomplete sentences, suggesting a rushed and careless approach to discovery at best, or an intentionally misleading or evasive approach at worst.”  Id. at *3. 

The Court wrote: “Each interrogatory answer is problematic. As a general matter, the answers are so brief and lacking in detail that they border on non-responsiveness. At least six interrogatories request that Defendants ‘describe in detail’⁴ various relationships, processes, communications, and matters relating to Plaintiffs’ claims…. In response, Defendants offer only a few words, or reference other vague answers.”  Id. at *3.  Defendants also ignored the definitions in plaintiffs’ interrogatories. Id. 

Interestingly, in response to “discovery on discovery,” the Court wrote that defendants’ “answers are fractured and incomplete.” Id. at *4.  Interrogatory No. 25 asked them to “[d]escribe the steps any Defendant has taken since April 2021 to preserve or destroy the records enumerated in Interrogatory [No.] 24.”  Id. at *4.  That is “discovery on discovery.”⁵  The Brio Court wrote: “In a baffling response, Defendants state: ‘The managers.’ … There are many other obtuse responses.”  Id. at *4.

The Court pointed to a “minor” error and added that “it exemplifies the Defendants’ lack of care in preparing their discovery responses.”  Id. at *4. It also wrote: “Defendants provide what appears to be a half-finished thought: ‘Rivera was contacted once..’ ECF No. 95-5 at 6. The use of ellipses in the response suggests that the answer was incomplete, yet Defendants never supplemented their answers.” Id.

Finally, “[d]espite the many unresponsive answers described above, Defendants doubled down on their responses after Plaintiffs highlighted their deficiencies in a detailed June 4, 2025 letter.”  Id. at *4. Defendants’ response to plaintiffs’ letter was simply to state defendants’ disagreement in a conclusory manner.

In summary, the Brio Court wrote:

Defendants’ discovery responses are egregious and, given the history and pattern of Defendants’ conduct in discovery to this point, the responses cannot be construed as counsel’s unfamiliarity with the Federal Rules of Civil Procedure or this Court’s Local Rules. See Mey v. Phillips, 71 F.4th 203, 219-20 (4th Cir. 2023) (determining appellants’ repeated failure to disclose discoverable materials “demonstrate[s] a continued pattern of discovery abuse that we simply cannot chalk up to inadvertence or mistake”).

Id. at *4.

THE SANCTIONS ANALYSIS & FAILURE TO COOPERATE

The Brio Court engaged in a detailed analysis of sanctions. Id. at *4-7.  In brief summary, among other things, it wrote that: “During the various status conferences in this matter, and as expressed in Defendants’ own June 24, 2025 letter to Plaintiffs, Defendants have repeatedly stated that they produced all responsive documents and information in their possession…. Yet, Plaintiffs’ review of produced records and their inspection of Defendants’ records room demonstrate that Defendants had not been diligent in locating and producing responsive records. Moreover, as described above, Defendants’ written discovery responses are inadequate and Defendants have failed to supplement those responses, despite Plaintiffs’ request and this Court’s July 15 Order.”  Id. at *5 (emphasis added).

Defendants’ breach of the duty to cooperate was a significant factor.  The Brio Court stated that “Defendants’ failure to cooperate in discovery has hampered the progress of this case, causing Plaintiffs prejudice. Plaintiffs have encountered significant difficulties obtaining basic information that strikes at the heart of their claims, including time and personnel records and other information of collective members.”  Id. at *5.

The Court has held status conferences to manage discovery and has emphasized the importance of counsel’s obligation to cooperate in discovery in good faith. The Court’s directives—and its orders to the same—are not to be taken lightly.

Id.

The following sanctions were imposed.  Pursuant to Rule 37(b)(2), “Defendants are precluded from relying on any facts or evidence that they have not identified in their May 2025 Answers to Plaintiffs’ First Set of Interrogatories. With respect to documents, Defendants are not permitted to rely on or otherwise introduce into evidence any documents that were not produced as part of Defendants’ July 15 and 16 supplemental document production or earlier productions.”  Id. at *6. 

Attorneys’ fees were also awarded in an amount to be determined.  Plaintiffs were also permitted additional deposition hours that were “necessary because Defendants’ lack of cooperation in discovery….” Id.⁶

Notes

1. For more information on enforcement of rules, see also A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts – E-Discovery LLC; Rules Matter: A “Perry Mason Moment” Was Derailed by a Discovery Violation – E-Discovery LLC; Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight – E-Discovery LLC; Word Processing Wars – E-Discovery LLC. ↩︎
2. I chaired a Bar association committee that drafted the proposed Principles. See M. Berman and A. Shelton, “The ESI Principles of the United States District Court for the District of Maryland for the Discovery of Electronically Stored Information in Civil Cases,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), Chap.7. ↩︎
3. For more information on that Rule, see Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process? – E-Discovery LLC; and, Document Correlation Under Fed.R.Civ.P. 34(b)(2)(E) – E-Discovery LLC. ↩︎
4. There was apparently no objection to a “describe in detail” request.  For more on “any and all” or “describe in detail” discovery requests, see Requests for Documents “Sufficient to Show,” Instead of “Any and All” Documents – E-Discovery LLC; and, Requests for “Any and All” Documents Are Obsolete – Update – E-Discovery LLC. ↩︎
5. Apparently, there was no objection to this request for satellite discovery.  Cf. “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit – E-Discovery LLC  with “Discovery on Discovery” Permitted – E-Discovery LLC; Guidelines for “Discovery on Discovery” – E-Discovery LLC; Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved – E-Discovery LLC (and blogs linked therein).  ↩︎
6. As to the duty to cooperate, see generally Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation – E-Discovery LLC; Failure to Cooperate Leads to Judicially-Imposed ESI Protocol – E-Discovery LLC. ↩︎

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