[EDRM Editor’s Note: This article was first published here on November 1, 2023 and EDRM is grateful to Michael Berman, for permission to republish. The opinions and positions are those of Michael Berman.]
In three recent decisions culminating in in Re: International Painters & Allied Trades Industry Pension Fund, 2023 WL 6812297 (D. Md. Oct. 16, 2023)(Coulson, J.)(“International Painters III”), the Court held that: discovery objections were waived because they were not timely raised; and, answers to interrogatories cannot merely refer to other documents. It did so using a streamlined, informal process for resolving discovery disputes.
STREAMLINED PROCESS TO RESOLVE DISCOVERY DISPUTES
First: “[T]he Court allows parties to follow the following procedures in settling discovery disputes through informal position letters rather than requiring the parties to file formal motions to compel….” That process begins with a conference among counsel to try to reach resolution or narrow the dispute. The next step is a “joint brief letter (not to exceed one page)” asking for judicial resolution and confirming prior efforts to resolve the issue. That is followed by “succinct letters (not to exceed three pages, single spaced)” summarizing the parties’ respective positions.
“The Court’s streamlined discovery dispute procedures are for the benefit of the parties in that the process allows for the parties to get their dispute before the Court and obtain a ruling faster and cheaper than the formal process provided for by the Federal Rules of Civil Procedure.”
Int’l Painters & Allied Trades Indus. Pension Fund et al v. Niles Indus. Coatings, LLC et al. Additional Party Names: Niles Plant Servs., LLC, 2023 WL 6619371, at *4 (D. Md. Oct. 11, 2023)(“International Painters II”).
This process results in prompt resolution. For example, the Court wrote: “One such dispute arose on August 8, 2023, in which Plaintiffs sought to compel Defendants’ overdue discovery responses.… The Court issued a Letter Order and Opinion regarding the dispute on August 22, 2023….”
In International Painters II, the Court explained that:
“The Court’s streamlined discovery dispute procedures are for the benefit of the parties in that the process allows for the parties to get their dispute before the Court and obtain a ruling faster and cheaper than the formal process provided for by the Federal Rules of Civil Procedure.”
Int’l Painters & Allied Trades Indus. Pension Fund et al v. Niles Indus. Coatings, LLC et al. Additional Party Names: Niles Plant Servs., LLC, 2023 WL 6619371, at *4 (D. Md. Oct. 11, 2023)(“International Painters II”).
The District of Maryland also has Discovery Guidelines. Guideline 1 provides a speedy, informal process.
Guideline 1.b encourages agreements; however, if “either side believes that the Court’s assistance would be helpful in framing or implementing such a plan, then the Court will make itself available with reasonable promptness, in response to a brief, written request for a discovery management conference that identifies the issues for consideration.”
Further, under Guideline 1.f:
In the event that such good faith efforts are unsuccessful, an unresolved dispute should be brought to the Court’s attention promptly after efforts to resolve it have been unsuccessful. A failure to do so may result in a determination by the Court that the dispute must be rejected as untimely. Counsel may bring the unresolved dispute to the Court’s attention by filing a letter, in lieu of a written motion, that briefly describes the dispute, unless otherwise directed by the Court.
Guideline 1.g states:
Upon being notified by the parties of the unresolved discovery dispute, the Court will promptly schedule a conference call with counsel, or initiate other expedited procedures, to consider and resolve the discovery dispute. If the Court determines that the issue is too complicated to resolve informally, it may set an expedited briefing schedule to ensure that the dispute can be resolved promptly.
WAIVER BY FAILING TO TIMELY OBJECT
Second, International Painters III reiterated that an untimely discovery objection was waived. “Defendants waived any objections to the Second Discovery Requests by failing to raise them for nearly three months….” 2023 WL 6812297 at *2.
Attorneys should make good faith efforts to respond to discovery requests within the time prescribed by those rules. Absent exigent circumstances, attorneys seeking additional time to respond to discovery requests should contact opposing counsel as soon as practical after receipt of the discovery request, but not later than three (3) days before the response is due.”
District of Maryland’s Discovery Guideline 9.
International Painters I held that the timeliness requirement applies to both Rule 33 (interrogatories) and Rule 34 (document requests). 2023 WL 5368040, at *2 (D. Md. Aug. 22, 2023)(“International Painters I”).
Under International Painters I the burden of avoiding waiver was on the defaulting party. 2023 WL 5368040 at *3. The Court explained that defendants’ proffered reason for remaining almost completely unresponsive to the discovery requests for three months was that “Plaintiffs pursued their discovery requests at a time when the ultimate scope of this action was unclear, because the motion for leave to amend was (and remains) pending before the Court.” Id.
Defendants’ argument was unsuccessful for two reasons. The Court held that the scope of discovery is defined by the pleadings as they exist at that time. Id.
Furthermore, Defendants’ objections pertain to two discrete issues: (1) a supernumerary objection regarding Plaintiffs’ amount of interrogatories and RFPDs served, and (2) Plaintiffs’ pursuit of information and documents dating back to January 1, 2010. Defendants surely could have brought these issues to Plaintiffs’ attention almost as soon as Defendants received Plaintiffs’ Second Set of Discovery Requests…. There is no doubt that Defendants’ failure to raise these obvious objections for nearly three months amounts to dilatory action.
Id. at *3 (emphasis added).
The District of Maryland’s Discovery Guideline 9 states: “Attorneys should make good faith efforts to respond to discovery requests within the time prescribed by those rules. Absent exigent circumstances, attorneys seeking additional time to respond to discovery requests should contact opposing counsel as soon as practical after receipt of the discovery request, but not later than three (3) days before the response is due.”
The District of Maryland’s ESI Principle 2.05 states: “Disputes regarding ESI that the parties are unable to resolve shall be presented to the Court at the earliest reasonable opportunity.”
ANSWERS TO INTERROGATORIES MUST BE COMPLETE & DOCUMENTS MUST BE PRODUCED ON A DATE CERTAIN
Third, the Court addressed defendants’ responses, explaining that:
2023 WL 6812297, at *3.
- “Defendant NIC supplemented its outstanding interrogatories by asserting that Plaintiffs would receive the answers to those interrogatories at NIC’s upcoming Rule 30(b)(6) deposition.”
- Defendant NIC wrote that it “will make a reasonable search of sources reasonably likely to contain responsive documents and such responsive documents will be made available for inspection and copying at NIC’s office located at 201 South Alloy Drive, Fenton, Michigan 48430.”
Both responses were held to be inadequate.
As to the first, the Court wrote that “federal courts nationwide have fairly unequivocally established that merely referring to a noticed deposition, either past or present, is an inappropriate means of answering an interrogatory.” An answer to an interrogatory should be “complete in itself.” Id. at *3 (citation omitted). Fed.R.Civ.P. 33(b)(3) mandates than an interrogatory must be answered “fully.” Subsection (d) permits a party to specify business records to review “if the burden of deriving or ascertaining the answer will be substantially the same for either party” and if the interrogating party is given information sufficient “to locate and identify them as readily as the responding party could….”
Fed.R.Civ.P. 1 provides that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
The International Painters trilogy is an example of the Court doing just that. First, it offered an expedited process. Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. Second, here the calls were all “good” and they were prompt.
Nor were the open production timeline and change in location permitted. As to location: “Plaintiffs expressly asked that their requests for production be ‘delivered to counsel for Plaintiffs.’ … Defendants did not abide by this request and did not assert a specific contemporaneous objection to that request. Nor did Defendants indicate that they would produce copies of any documents or electronically stored information instead of permitting inspection.”
As to the lack of a date certain for production:
In fact, Defendants’ response to the document requests concedes through its use of future-tense that Defendants have not yet even begun conducting a search for responsive documents despite the undersigned’s prior Letter Order compelling Defendants to produce responsive documents by September 8, 2023…. Such behavior is unacceptable for purposes of Rule 34.
Id. at *4.[1]
The Court cited, inter alia, Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651 (D. Md. 1997)(Grimm, J.), which stated: “Thus, a response to a request for production of documents which merely promises to produce the requested documents at some unidentified time in the future, without offering a specific time, place and manner, is not a complete answer as required by Rule 34(b) and, therefore, pursuant to Rule 37(a)(3) is treated as a failure to answer or respond. The procedures set forth in Local Rule 104.8 are therefore inapplicable, and the moving party is free to file a motion to compel and for sanctions pursuant to Fed.R.Civ.P. 37(a), if good faith efforts to resolve the dispute with the opposing party have failed.” Id. at 656. “In short, there are only three appropriate responses to a request for production of documents: (1) an objection to the scope, time, method and manner of the requested production; (2) an answer agreeing to the requested scope, time, place and manner of the production; or (3) or a response offering a good faith, reasonable alternative production, which is definite in scope, time, place or manner.” Id. (emphasis added).
CONCLUSION
Fed.R.Civ.P. 1 provides that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
The International Painters trilogy is an example of the Court doing just that. First, it offered an expedited process. Parties can live with a good call or a bad one, but they need the balls and strikes called promptly. Second, here the calls were all “good” and they were prompt.
[1] The Court rejected an argument that the discovery requests had become moot.
