Strategies for Avoiding Untimely Discovery

The Federal Rules of Civil Procedure are the playbook for civil litigation. The Rules define the timing of hearings, required disclosures, how to request information, and remedies when a party doesn’t comply with the Rules. A recent case highlighted the interplay between the Rules when a party produced emails after the close of discovery.

After walking through the case, we’ll cover how best to use searches and predictive coding models within review in order to identify documents for initial disclosures and discovery requests.

Scheetz v. Van Vooren

In a case over prison visitation rights, the plaintiff brought a motion to strike the Defendant’s affidavit and email exhibits supporting a summary judgment motion. The emails were sent to Defense counsel in August 2014, and were discussed in deposition, but were not produced until July and August 2017. The Defendants argued the emails were produced late because they did not know the messages existed.

The Plaintiff questioned the Defendant on what was done to locate the email messages and whether other emails existed. While the messages were ultimately produced, the Plaintiff was not able to question the Defendants on the messages at deposition.1

Rules for Initial Disclosures

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(ii), a party must disclose all documents or electronically stored information within its control that support its claims or defenses, with the only exception being if the information will be used for impeachment. A Court can issue “appropriate sanctions” for the failure to disclose or supplement discovery, unless the failure was “substantially justified or is harmless” pursuant to Fed. R. Civ. P. 37(c)(1). In addition, an untimely disclosure is considered a nondisclosure.

There is a four-part balancing test to determine whether an untimely disclosure was either substantially justified or harmless. The balancing test factors include “[1] the reason for noncompliance, [2] the surprise and prejudice to the opposing party, [3] the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and [4] the importance of the information or testimony.”

Courts will determine if an untimely disclosure was justified based on 1) the availability of the evidence, 2) the party’s knowledge of the relevancy of the evidence, and 3) whether the party ever moved the court for additional time to gather the evidence.

Analysis of the Late Discovery

The Defendants’ argument—that the untimely disclosure was substantially justified because they did not know about the emails—failed, because the emails were sent to the defense attorney three years prior to production. Since the emails were in fact responsive to discovery requests, the Court stated the Defendants failed in their due diligence in responding. As such, the untimely disclosure was not substantially justified.

The Court further held the untimely disclosure was not harmless. To reach this conclusion, the Court considered “the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of trial, and the importance of the information.”

The Plaintiff was unable to depose the Defendant on the untimely emails, which were relevant to the case, and were cited in summary judgment motions. The Court found that because the discovery deadline had passed and the Plaintiff could not depose the Defendant before trial, the Plaintiff was caused prejudice on important information in the case. As such, the Court granted the motion to strike the Defendant’s affidavit and exhibits supporting their summary judgment motion.

Compliance Strategies for the Federal Rules of Civil Procedure

The failure to produce email messages can result in evidence that helps your case being excluded from trial. In the above case, that was an affidavit and supporting exhibits.

Luckily, there are some best practices to follow in order to identify documents for initial disclosures and discovery requests:

  1. Create the Right Search for the Complaint:  Create searches based on the allegations in the complaint to identify data that supports your case. For example, if searching for emails pertaining to a specific person or incident, build a search for messages between the relevant custodians, over the timeframe defined in the lawsuit, and search within the body of the messages for the person at issue in the lawsuit. A predictive coding model can even be created based on the issue coding for the hits reviewed from the above search. This could identify other information that would need to be included in the initial disclosures.
  2. Create Searches Based on Requests for Production: Searches can be created for each request for production. The same strategy can be applied from the Initial Disclosure search, such as email messages between specific people, over set time periods, pertaining to specific subjects. Prediction models can also be created to leverage predictive coding to find responsive documents that were not returned by the initial searches.

Discovery Planning

The best way to ensure compliance with the Federal Rules of Civil Procedure is to have a discovery plan for identifying initial disclosures and requests for production. The plan should start with client interviews to ensure all sources of data are collected, understand the technology used for communications, and terms of art that can be searched. From there, lawyers can develop searches for relevant data supporting the lawsuit. Predictive coding models can also be created based upon issue coding to help identify responsive data.

Keeping the goals of the case in mind can help attorneys be efficient in finding data to comply with their discovery obligations.  

1Scheetz v. Van Vooren, 2017 U.S. Dist. LEXIS 192457 (D.S.D. Nov. 21, 2017).

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