3 Responses to Replead for Participation and Another Case Showing the Need for Better Education

  1. Ralph Artigliere says:

    I understand the desire to teach before we preach. But I do not think the problem here was lack of understanding, it was an unacceptable failure to communicate and follow basic rules.

    The parties failed to certify an effort to resolve the issue, which almost got them dumped from consideration out of hand, but the court cut them a break and said the parties “somewhat complied with the spirit” of the rules. Judge Cherry was more than generous in hearing this, but I expect he did so because the culprit was so clear and further delay would be counterproductive.

    The issues with form of production apparently were not resolved in a Rule 26(f) “meet and confer” (strike one); not resolved in the Rule 37(a) and Local Rule 37.1 mandatory discussion (stike 2); and both lawyers failed to certify their effort to resolve discovery issues (strike 3). The failure of the Plaintiff to comply with Rule 34 (“as maintained or usable form”)was a fourth breach of rules that may have been avoided if a true 26(f) meet and confer occurred in the first place. Sure, the defense lawyer could have requested a specific form of production in the Request, but the whole issue should have been resolved by talking about form of production as set forth in Rule 26(f). Once there was a dispute over production, the defendant had an expert willing to help seek middle ground on production, which was resisted by the Plaintiff’s counsel on a bogus claim of need to protect trade secrets. I think that’s where the train completely left the track.

    Do lawyers realize how frustrating it is for the judge hear this type of phony dispute? There was nothing justiciable or new about this form of production issue. It’s a no-brainer. How does this get to yet another sanctions-level opinion?

    You know I am all for education. But this looks like an attitude issue or lack of professionalism… not an education issue. I think you cut them a break by not preaching in the blog. Sorry I can’t be so generous. Anyone who does not understand discovery of metadata is not qualified to be handling this type of case. Couple that with the red herring protective order the plaintiff tried to assert and the failure to fully respond in the interrogatory answers… well you see my drift. To top it all off, the culprit causing delay and expense was the plaintiff’s lawyer, who should be moving the case toward trial or resolution, not putting up delaying roadblocks. I wonder if the request for fees and costs were against lawyer or client or both. Whatever was requested was granted. The order simply said Plaintiff shall pay the fees and costs. It would be interesting to know if the Attorney was included.

    Kroll reports exponential increase in sanctions cases. Well, if lawyers don’t start to get it, the problems for them are not going to come from court sanctions. It will come from the clients who will not tolerate this needless additional expense and delay. Lawyers making these types of mistakes or unneeded delay and cost will not last much longer in today’s marketplace, in my opinion.

    Ralph, I know better education will help… your cause is just… learning for someone like the lawyer in this case needs to include attitude adjustment and professionalism. I think knowing that scrubbing metadata is a no-no is just part of the problem here.

    Ralph A.

  2. […] Replead for Participation and Another Case Showing the Need for Better Education by Ralph Losey go to source […]

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