News on Victor Stanley II – Judge Garbis Affirms Amount of Judge Grimm’s $1,049,850.04 Sanction

June 16, 2011

There has been more action in one of everyone’s favorite e-discovery cases, Victor Stanley v. Creative Pipe. On Tuesday, June 14, 2011, District Court Judge Marvin J. Garbis affirmed Magistrate Judge Paul Grimm’s prior Report and Recommendation. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010). Judge Grimm’s order required the defendant, Creative Pipe, Inc., to pay a total of $1,049,850.04 in attorney’s fees and costs to the plaintiff, Victor Stanley, Inc., as a monetary sanction for spoliation. A copy of the Judge Garbis Order Affirming Sanctions Amount is here linked. The award was for attorneys fees in the amount of $901,553.00 and costs of $148,297.04. This is the amount that Judge Grimm found was required to cover all of the fees and costs incurred by the plaintiff, Victor Stanley, because of the defendant’s intentional spoliation of evidence. Recall this is the case with Judge Grimm’s great line about the gang who couldn’t spoliate straight, referring to the defendants, Mark Pappas and his company Creative Pipe, Inc. See my article: Victor Stanley 2″ – Judge Grimm Imposes Prison Sanction for Spoliation by a Defendant Reminiscent of the Leader of “The Gang That Couldn’t Shoot Straight.”

Judge Garbis explained his affirmance of the recommended $1,049,850.04 sanction:

The Court awarded sanctions equivalent to Plaintiff’s fees and costs “associated with all discovery that would not have been un[der]taken but for Defendants’ spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.” …

The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will “restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 534 (D. Md. 2010)(citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). …

The Court agrees with the Magistrate Judge’s Decision and finds that the recommended award is only for those fees and costs reasonably flowing from the abuse of the discovery process. Plaintiff provided sufficient detail to support its claim, and Defendants have not met their burden to demonstrate that the fees and expenses outside their suggested time period are unrelated to the spoliation. See Thompson v. HUD, No. MJG- 95-309, 2002 WL 31777631, at *9-10 (D. Md. Nov. 21, 2002) (describing the respective burdens that each party bears in establishing and challenging fees).

Judge Garbis discussed Creative Pipe’s multiple objections as to the amount of the award, and rejected all of them. He instead adopted Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

Creative Pipe has already paid a total of $478,409.92,2 leaving a balance now due under this order of $571,440.12. The Order concludes with the following:

Defendants shall, by July 15, 2011, pay Plaintiff $571,440.12, constituting the balance due of a total sanction award of $1,049,850.04.

Noticeably absent is Judge Grimm’s original automatic jail sanction if the fees are not timely paid. That portion of Judge Grimm’s order had previously been overturned by Judge Garbis, but recall Judge Garbis also said he might still impose jail sanctions depending on defendant’s conduct if and when the fee sanction was upheld.

The amount of sanctions have now been upheld and the clock is running. It will be interesting to see what happens next. Will the remaining $571,440.12 be timely paid? Will this be further appealed to the Circuit Court and bonded off? Will there be further enforcement if it is not bonded? Could their yet be jail time for the infamous Mr. Papas?

Also remaining to be see is who will win on the merits of the case itself. The bench trial has already taken place, but Judge Garbis has not yet issued his ruling. Could Mark Pappas, the leader of the gang who couldn’t spoliate straight, possible still prevail?

“Victor Stanley 2” – Judge Grimm Imposes Prison Sanction for Spoliation by a Defendant Reminiscent of the Leader of “The Gang That Couldn’t Shoot Straight”

September 12, 2010

The sequel to Judge Paul Grimm’s landmark Victor Stanley case was issued September 9, 2010, and is one for the record books. Victor Stanley v. Creative Pipe, 2010 WL 3530097 (D. MD. Sept. 9, 2010). Victor Stanley II has morphed from a search case, to a sanctions thriller. It records one of legal history’s strongest examples of lawyers behaving badly in e-discovery, so bad, in fact, that Judge Grimm ordered the spoliating party to jail. The defendant, Mark T. Pappas, can only avoid two years imprisonment if he immediately pays all of the plaintiff’s fees and costs award. I am sure that those fees, yet to be determined, will be enormous.

As I will explain at the end of this essay, this strong sanction order is important to the future of our system of justice, a unique common law system where discovery is lawyer driven and trust-based. Should a decision by one of our country’s most prominent jurists be reversed, could a move to the civil law, inquisitorial, judge-based system be far behind? I hope not. This decision needs to be affirmed.

This 103-page opinion includes a 12-page chart summarizing spoliation sanctions law by Circuits. Judge Paul Grimm has, once again, considerably advanced the jurisprudence of discovery, this time in sanctions, a key area of law today. One filled with conflicts and inconsistencies. He emphasizes the need for proportionality and reasonability in all things, including preservation. Thank you for that Judge Grimm. Too many lawyers and judges do not understand the need to resize efforts and expense to fit the case. Reasonability is a sliding scaling following the metrics of Rule 26(b)(2)(C). Perfection is an ideal, not a requirement, and one mistake in e-discovery is never per se negligence, much less a sufficient grounds for sanctions. A deep dive into the facts is always necessary. Victor Stanley II is a deep dive into both ugly facts and mixed law.

The Gang That Couldn’t Spoliate Straight

The facts of this case are so bizarre that Judge Grimm invoked the title of the comedic novel by Jimmy Breslin called The Gang That Couldn’t Shoot Straight:

Pappas’s zeal considerably exceeded his destructive skill and his judgment in selecting confederates to assist in his efforts to destroy ESI without detection. While Pappas succeeded in destroying a considerable amount of ESI, Plaintiff was able to document this fact and ascertain the relevance of many deleted files. At the end of the day, this is the case of the “gang that couldn’t spoliate straight.”

The complex facts of fraud and spoliation in Victor Stanley are egregious and manifold.  (Recall in Victor Stanley I the allegation of the crime fraud exception to attorney-client privilege?) There is a long laundry list of court nose-thumbing and nonchalant lying by defendants in this case. As far as we know, however, there is no proof that lions were used to extort anyone. Recall the famous scene in the movie  of The Gang That Couldn’t Shoot Straight shown above. Unlike Breslin’s book, the facts here are sad and anger provoking, not comedic. Indeed, Judge Grimm found this case to be:

… the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly fourteen years on the bench.

I wish I was surprised and unfamiliar with the many cons and lies described in this opinion, but I am not. Unfortunately, as Craig Ball also points out, this kind of misconduct is not as uncommon as most judges think. After thirty years in the trenches of litigation, I am jaded. I have seen or suspected it all before. After a few decades, it gets to you. Perhaps that is what drives me and many other experienced attorneys to write and talk about this so much.

As Jimmy Breslin (shown left) says: “Rage is the only quality which has kept me, or anybody I have ever studied, writing columns for newspapers.”

No, the facts of Victor Stanley II are not that unusual. What is really unusual here is that Mr. Pappas could not shoot straight. What is really unusual here is that the spoiliator was caught and his fraud exposed.

This seems to be an unexpected fringe benefit of the electronic age and e-discovery. The fraudsters make more mistakes these days since the technology is so complicated and usually way beyond their kin. In the old days of paper evidence it was easier for the con to succeed.

I may be jaded, but I am also greatly heartened that a bad-guy was caught and is now on his way to appropriate punishment. Here is how Judge Grimm explains the complexity of the web of fraud that he, and plaintiff’s counsel, were brave, smart and strong enough to take the time to sort out.

Regrettably, the events underlying the pending motions are convoluted and cannot be summarized succinctly. They must be set forth in considerable detail, inasmuch as they spanned several years, involved multiple actors and a succession of defense attorneys, and are memorialized by hundreds of Court filings and affidavits, as well as countless hours of deposition and hearing testimony. Charting them has consumed, collectively, hundreds of hours of my time and my law clerk’s time.

I urge you to read the full opinion and closely scrutinize “Pappas’s dogged but unsuccessful attempts to prevent the discovery of ESI evidence against him … and Pappas’s successful, permanent deletions of countless ESI.” As Jimmy Breslin said: “Complainant received immediate lacerations of the credibility.” Even though a summary is not feasible, Judge Grimm does provide an overview of the things that the defendants Mark T. Pappas and his company, Creative Pipe, were found to have done:

All in all, in addition to the attempted deletions that caused delay but no loss of evidence, there were eight discrete preservation failures: (1) Pappas’s failure to implement a litigation hold; (2) Pappas’s deletions of ESI soon after VSI filed suit; (3) Pappas’s failure to preserve his external hard drive after Plaintiff demanded preservation of ESI; (4) Pappas’s failure to preserve files and emails after Plaintiff demanded their preservation; (5) Pappas’s deletion of ESI after the Court issued its first preservation order; (6) Pappas’s continued deletion of ESI and use of programs to permanently remove files after the Court admonished the parties of their duty to preserve evidence and issued its second preservation order; (7) Pappas’s failure to preserve ESI when he replaced the CPI server; and (8) Pappas’s further use of programs to permanently delete ESI after the Court issued numerous production orders.

Id. at pgs. 5-8.

Pappas’ Many Attempts To Hide-The-Ball

I cannot summarize and simplify the facts in this hundred-plus page opinion anymore than Judge Grimm can. But I can provide a few quotes to provide a taste of some of the many scams uncovered:

  • “Pappas claimed to have moved the emails to a deleted items folder for “storage purposes” … it is hard to imagine that anyone would claim, with a straight face, that he deleted emails in order to “store” them in a deleted items folder.  The more credible inference to be drawn is that Pappas wanted to destroy any evidence that would belie his sworn statements.”
  • “Moreover, at least two of Pappas’s successful larger deletions of ESI occurred on the eve of scheduled discovery regarding the contents of Pappas’s work computer. First, the Court scheduled a discovery hearing for February 1, 2007, and the afternoon before, Pappas deleted 9,234 files from his work computer, a password-protected laptop. … Second, an imaging of Pappas’s work computer was scheduled for the week of February 21, 2007. Pappas deleted almost 4,000 files on February 16 and 17, 2007, and someone ran Microsoft Window’s Disk Defragmenter program immediately afterward, rendering the files unrecoverable.”
  • “The record is devoid of any evidence that Defendants considered, let alone implemented, a litigation hold after Plaintiff filed suit or after the Court issued preservation orders…”
  • “CPI named one of its product lines the “Fuvista” line. Pappas admitted during discovery that “Fuvista” stood for “Fuck you Victor Stanley,” … demonstrating that Pappas’s wit transcended sophomoric pranks such as logging into VSI’s web site as “Fred Bass” and extended to inventing insulting acronyms to name his competing products. When disclosed, the meaning of this acronym removes any doubt about his motive and intent. No doubt Pappas regarded this as hilarious at the time. It is less likely that he still does.”
  • “According to Defendants, Pappas did not “intentionally” dispose of the EHD “to keep the files on it from being subject to discovery.” … This argument is absurd. Pappas purchased the EHD; attached it to his work computer immediately before suit was filed; used it for months, including after suit was filed and Plaintiff had demanded preservation of ESI; transferred 62,071 files to it, which included many files with names that render their relevance readily apparent; and kept its existence secret even from his own ESI litigation expert. He testified that he returned the EHD in November 2006—without having someone back up its contents—to “Bob from Office Max” because he was “frustrated” by its automatic backup features that “would flash messages and interrupt [his] work.” … Defendants failed to produce any documentation corroborating Pappas’s testimony that the EHD was returned to Office Max, such as an affidavit from “Bob,” a receipt from Office Max, or documents showing the crediting of the purchase price of the EHD back to CPI after it was returned. Yet Pappas expects the Court to accept his doe-eyed explanation at face value, rather than the untruth that it manifestly is. Even if true, this is of little moment, as Defendants concede that the EHD “should not have been disposed of since it was in existence after the lawsuit had been filed.” … Moreover, the EHDand its contents never were made available for forensic examination during discovery and remain unavailable today. It does not require Napoleonic insight to recognize with a casual glance at the names of the unavailable files that what was lost was relevant to Plaintiff’s claims, and the absence of such a large quantity of clearly relevant files was prejudicial.”
  • “On December 22, 2006, I entered an order staying all discovery (except for an existing order that the parties meet and confer regarding discovery disputes, which had begun to multiply) until after a hearing scheduled for January 18, 2007. (ECF No. 41.) That order cautioned: “[B]oth parties are reminded of their substantive duty to preserve evidence, including electronic evidence, that is relevant to the case.”21 … Pappas later admitted that he received that order the following day and that he understood what it meant. …Subsequent forensic examination of Defendants’ computers showed that the CPI System Registry reflected 9,282 user-initiated deletions of files from Pappas’s work computer between my December 22, 2006 order and the February 1, 2007 discovery hearing. … Given the file names, it is evident that the files were relevant and would have supported Plaintiff’s case, and I conclude that Defendants breached their duty to preserve potentially relevant ESI.”
  • “Despite the discussion of preservation obligations during the discovery hearing and conference and in the February 1, 2007 Order, in the weeks that followed, as described in further detail below, a user logged into Pappas’s work computer as Pappas, ran a Disk Cleanup program on it, deleted files, accessed the Registry Editor, and ran the system’s Disk Defragmenter program on the computer.”
  • “Regardless of the “spin” Defendants attempt to put on it, following a series of ESI preservation and production orders by the Court, Defendants allowed their computer consultant to run programs that eliminated temporary internet files. It cannot be ignored that this occurred in a case the essence of which involves surreptitious entry to Plaintiff’s website for the purposes of downloading design drawings that Defendants then pirated and misrepresented to be their own in order to compete with Plaintiff. It is no coincidence that the deleted files included those showing the internet site that Defendants had accessed. I am persuaded that these files were relevant, and that their loss caused prejudice to Plaintiff.”

Judge Paul Grimm on Sanctions Law

Judge Paul Grimm, who in real life is the anthesis of grim, begins his statement of the law with a high-level summary of his findings at pages 34-35:

Plaintiff has proved grave misconduct that was undertaken for the purpose of thwarting Plaintiff’s ability to prove its case and for the express purpose of hamstringing this Court’s ability to effect a just, speedy, and inexpensive resolution of a serious commercial tort. The prejudice to Plaintiff is clear and has been described in each of the sections above. It is helpful, but of little comfort, that Defendants themselves agree with my assessment that the lost or destroyed ESI was relevant, and its absence as evidence prejudicial to Plaintiff.

As you can see, at this point Pappas has gone through several sets of attorneys. Those now defending him on the final motion for sanctions that is here ruled upon have distanced themselves from prior counsel and are admitting many of the allegations. They try to defend Pappas in part by putting some of the blame solely on the defendants’ prior attorneys, a tactic that served Qualcomm well. They also try to pin some of the blame on the defendants’ computer experts. Judge Grimm disposes of these arguments based on agency. Pappas is responsible for the actions of his agents, namely his attorneys and hired experts. See pages 35-36 and footnote 23. Judge Grimm goes on to say that:

Because Defendants’ previous attorneys and DeRouen, Defendants’ computer consultant, are not parties to this action, any claims against them as individuals, rather than agents of Defendants, would have to be brought as a separate action.

Judge Grimm takes pains to point out that his opinion should not be misconstrued as demanding perfection in preservation and collection efforts. He well understands that only reasonable efforts are required by the law, and that reasonability is determined by proportionality. He cites to the latest articles on proportionality in footnotes 24 and 25 to emphasize this point. Honest mistakes can always be made in spite of reasonable efforts and Judge Grimm does not intend for those to be sanctionable. Judge Grimm is well aware of the concerns of the legal profession about runaway e-discovery costs and the imposition of excessive, unrealistic burdens on parties in connection with ESI preservation and collection. Victor Stanley II is not a case of alleged negligence. It is a case on intentional, bad faith spoliation. As Judge Grimm explains:

Nothing in this memorandum should add to this collective anxiety. Defendants do not dispute that spoliation took place, relevant evidence was lost, and Plaintiff was prejudiced accordingly; that Defendants’ misconduct was sufficiently egregious to warrant sanctions; and that the sanctions warranted are serious. Nor is this a case where Defendants have claimed or demonstrated that what they did was reasonable and involved effort and expense that were proportionate to what is at stake in the litigation.

Judge Grimm not only understands the collective anxiety of the profession, he tries to alleviate some of our concerns by providing a better explanation of the law of sanctions that goes beyond an application of the law of his Circuit:

In such an instance, the Court could be excused for simply acknowledging Defendants’ concessions and applying the applicable law of the Fourth Circuit without considering the broader legal context in which preservation/spoliation issues are playing out in litigation across the country. While justified, such a narrow analysis would be of little use to lawyers and their clients who are forced, on a daily basis, to make important decisions in their cases regarding preservation/spoliation issues, and for whom a more expansive examination of the broader issue might be of some assistance. Accordingly, I will attempt to synthesize not only the law of this District and Circuit, but also to put it within the context of the state of the law in other circuits as well. I hope that this analysis will provide counsel with an analytical framework that may enable them to resolve preservation/spoliation issues with a greater level of comfort that their actions will not expose them to disproportionate costs or unpredictable outcomes of spoliation motions. 27

Footnote 27 references the previously mentioned 12-page chart summarizing the law of each jurisdiction.

Judge Grimm begins by considering the court’s authority to impose spoliation sanctions under both its “inherent powers” and Rule 37. Judge Grimm issues sanction in Victor Stanley II under authority of Rule 37(b)(2) because numerous discovery orders were disobeyed. Defendants argued that Judge Grimm did not have authority to sanction under this rule because the orders disobeyed required preservation of evidence, not production of documents. An interesting defense, which Judge Grimm rejects at pages 43-44:

On its face, Rule 37(b)(2) permits sanctions for disobedience of “an order to provide or permit discovery, … The rule does not define what is meant by “provide or permit” discovery, but the advisory committee’s notes to Rule 37 reflect that subsection (b) was amended in 1970 to broaden the ability of a court to sanction for a violation of discovery. … it cannot seriously be questioned that a court order to preserve information, including ESI, has as its core purpose the objective of ensuring that the ESI can be “provided” during discovery, and is intended to “permit” that discovery. It would clearly violate the purpose of Rule 37(b) if a court were unable to sanction a party for violating the court’s order to preserve evidence simply because that order did not also order the production of the evidence. As will be discussed below, the duty to preserve relevant evidence is a common law duty, not a rule-based duty. It therefore is no surprise that Rule 37(b)(2) does not specifically refer to court orders to “preserve” evidence. The reference to Rule 26(f), however, which does specifically refer to preservation obligations, makes it clear that court orders issued to enforce discovery plans agreed to by the parties, which include preservation obligations, would be enforceable by Rule 37(b)(2) sanctions. If so, then it is equally compelling that a preservation order issued by the court sua sponte, and designed to govern the discovery process by ensuring that the evidence to be preserved, if within the scope of discoverable information, may be provided in response to an appropriate discovery request, also is an order to “permit discovery.” To reach a contrary conclusion would be to exalt form over substance.

Judge Grimm goes on to consider whether there was sufficient proof under the law of sanction worthy spoliation.  This requires that he first determine whether there was a duty to preserve the evidence destroyed, and whether the duty was violated. Judge Grimm well understands that “absent some countervailing factor, there is no general duty to preserve documents, things, or information, whether electronically stored or otherwise.” In fact, he cites to his own article for this well-established, but often forgotten principle: Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton, Proportionality in the Post- Hoc Analysis of Pre-Litigation Preservation Decisions, 37 U. BALT. L. REV. 381, 388 (2008).

Judge Grimm recognizes that the determination of the trigger time and extent of preservation efforts are tied to the particular facts of a case. He understands the importance of proportionality in preservation and cites to Rimkus and other authority for this key point:

Proper analysis requires the Court to determine reasonableness under the circumstances— “reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.” THE SEDONA CONFERENCE, THE SEDONA PRINCIPLES: BEST PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION ii (2d ed. 2007), available at (follow link); see Jones, 2010 WL 2106640, at *5. It “is neither absolute, nor intended to cripple organizations.” 50 Grimm, 37 U. BALT. L. REV. at 385. Thus, “[w]hether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established applicable standards.” Rimkus, 688 F. Supp. 2d at 613 (emphasis in Rimkus); see Legal Holds, supra, at 3 (“In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.”). Put another way, “the scope of preservation should somehow be proportional to the amount in controversy and the costs and burdens of preservation.” Grimm, 37 U. BALT. L. REV. at 405.

Although, with few exceptions, such as the recent and highly instructive Rimkus decision, 32 courts have tended to overlook the importance of proportionality in determining whether a party has complied with its duty to preserve evidence in a particular case, this should not be the case because Fed. R. Civ. P. 26(b)(2)(C) cautions that all permissible discovery must be measured against the yardstick of proportionality. See Procter & Gamble Co. v. Haugen, 427 F.3d 727, 739 n.8 (10th Cir. 2005) (requiring district court to consider Rule 26(b)(2)(C)(iii) before ordering spoliation sanctions to ensure against “‘the burden or expense of the proposed discovery outweigh[ing] its likely benefit’”) (quoting Rule). Moreover, the permissible scope of discovery as set forth in Rule 26(b) includes a proportionality component of sorts with respect to discovery of ESI, because Rule 26(b)(2)(B) permits a party to refuse to produce ESI if it is not reasonably accessible without undue burden and expense. Similarly, Rule 26(g)(1)(B)(iii) requires all parties seeking discovery to certify that the request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, the amount in controversy, and the importance of the issues at stake in the action.” Thus, assessment of reasonableness and proportionality should be at the forefront of all inquiries into whether a party has fulfilled its duty to preserve relevant evidence. Jones, 2010 WL 2106640, at *6-7 (“[R]easonableness is the key to determining whether or not a party breached its duty to preserve evidence.”).

These are welcome words of proportionality to those of us in the litigation trenches. We struggle daily with non-cooperative opposing counsel. They see e-discovery as a method of extortion, not a search for truth, despite all of their protestations to the contrary when in front of a judge. If a party or their counsel do not recognize proportionality, they are likely misusing e-discovery as a weapon. All aspects of e-discovery, all nine-steps of the EDRM, must be analyzed and understood in the context of proportionality, not just preservation. The efforts required for reasonability are inherently tied to the to evaluation of the risks and value of a case.

Not surprisingly, under the extreme facts of Victor Stanley II, there is little trouble finding a duty and breach, despite considerations of proportionality and reasonableness of efforts. As Judge Grimm explains at page 62:

Proportionality and reasonableness are not at issue because Defendants have never alleged that it would have been an undue burden for them to preserve the ESI they destroyed. Neither is this a case where a hapless party took objectively reasonable steps to preserve ESI, but it nonetheless was destroyed or lost.

Under these facts the only issue is what sanctions are appropriate. For this determination Judge Grimm looks to the “culpability of the state of mind” of the spoliator, here Pappas. The difference in the Circuits on this scienter issue is discussed. Judge Grimm points out that the failure to issue a written hold may be negligent, but is not per se gross negligence in most courts, including his own, in marked contrast to Judge Scheindlin’s holding in Pension Committee on this point. Id. at 64-65. Judge Grimm finds bad faith by Pappas in Victor Stanley II:

In sum, Defendants took repeated, deliberate measures to prevent the discovery of relevant ESI, clearly acting in bad faith, and in affidavits, depositions, and in open court, Pappas nonchalantly lied about what he had done.

Next he considers the relevance of the lost evidence and the resulting prejudice, and notes inconsistent standards in this area of the law of sanctions, as in all others. Here relevance and prejudice were established, and eventually admitted. So Judge Grimm’s next step is to determine the severity of the sanctions he should impose. There is an enormous range and here are the factors that a court should consider:

Thus, the range of available sanctions serve both normative—designed to punish culpable conduct and deter it in others—and compensatory—designed to put the party adversely affected by the spoliation in a position that is as close to what it would have been in had the spoliation not occurred—functions. Because, as noted above, the duty to preserve relevant evidence is owed to the court, it is also appropriate for a court to consider whether the sanctions it imposes will “prevent abuses of the judicial system” and “promote the efficient administration of justice.” Jones, 2010 WL 2106640, at *5. The court must “impose the least harsh sanction that can provide an adequate remedy.” Pension Comm., 685 F. Supp. 2d at 469; see Rimkus, 688 F. Supp. 2d at 618.

It is at this stage of analysis that many a judge get’s lost, or more directly put – wimps out. I don’t think they understand the impact this has on the Bar. But not here, not with Judge Grimm.

Defendants’ willful misconduct has had a considerable adverse impact on the Court’s pretrial schedule, imposed substantial burden on two judges of this Court and their staffs, and Pappas has essentially thumbed his nose at the Court’s efforts to oversee a pretrial process that would facilitate a fair and timely resolution of this case on its merits. Nonetheless, in fashioning spoliation sanctions, Courts must strive to issue orders that generate light, rather than heat, and without ignoring the magnitude of willful misconduct and prejudice, must fashion remedies that strike the appropriate balance between those that are normative and those that are compensatory.

Although the plaintiff, Victor Stanley, did not receive all of the sanctions it requested, it did get a lot. A default judgment was entered on the key copyright infringement count, including an injunction. But most importantly, Judge Grimm awarded attorney fees and costs and found Pappas to be in civil contempt of court for violating its orders.

For such clearly contemptuous behavior, a very serious sanction is required. Accordingly, I order that Pappas’s acts of spoliation be treated as contempt of this court, and that as a sanction, he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded after Plaintiff has submitted an itemized accounting of the attorney’s fees and costs associated not only with filing this motion, but also with respect to all efforts expended throughout this case to demonstrate the nature and effect of Pappas’s spoliation. These costs and fees likely will amount to a significant figure, and that will properly vindicate this Court’s ability to enforce its discovery orders. The commencement of Pappas’s confinement will be determined at the conclusion of the proceedings to quantify the amount of attorney’s fees and costs.

Without the threat of jail time, Pappas’s future conduct would be predicted by his past, and Plaintiff will receive a paper judgment that does not enable it to recover its considerable out-of-pocket losses caused by Pappas’s spoliation.

Sanctions Must Be Strong Enough Deter Fraud and Promote Trust

We need more judges like Paul Grimm who are willing to impose severe sanctions, even imprisonment, when faced with severe misconduct. That, and education, are the only way to discourage similar behavior by other parties. All too often these sanction cases end with a whimper, not a bang (think Qualcomm). As a result, many litigants and their attorneys are not getting the message that hide-the-ball is both wrong and irresponsibly risky. They are not pushed into cooperation by fear of punishment. There is not much downside for cheating, much less nose thumbing and not-cooperating, and so they do not change. Reminds me of Breslin’s most famous quote: “When you stop drinking, you have to deal with this marvelous personality that started you drinking in the first place.”

The system is slanted, and justice is denied, whenever one party gets away with hiding truth. Discovery is based on trust between attorneys and the parties. Trust that the other side will obey the rules and turn over evidence fairly requested, even when to do so will harm or even destroy their case. When this trust is violated, and the rules are flagrantly and intentionally disobeyed, the only just result is severe sanctions.

I am not talking about honest mistakes and I am not talking about trying to put your best face on a picture. Of course attorneys must try to present the evidence in the light most favorable to their client. They must persuade by emphasizing the good facts and minimizing and explaining the bad. But never by destroying or hiding those bad facts. We are not paid to rewrite history, just style it up a bit. We have a system of justice based on application of the law to the facts, the true facts, not a fantasy. If one side is permitted to hide the true facts, to only present the facts they want the judge and adversary to see, then justice is subverted. Discovery based on honest participation and compliance with the rules must be enforced for the truth to come out and justice to be done.


The United States legal system is based on trust-based discovery; discovery which is run by the litigants, and their attorneys. It stands in sharp contrast with the legal systems of the rest of the world, especially Europe, where discovery is inquisitorial and is run by the courts and their judges.

If the Bench and Bar continue to tolerate and wink at cheating and nonchalant lying about discovery, then some day, in order to restore confidence in our legal system, we may have to abandon party-driven discovery entirely. We may have to join the rest of the world where judges take a far more active role and the rights of litigants and their attorneys are significantly diminished. Will we have ten-thousand more judges like Paul Grimm needed to make it work? I doubt it.

Let’s not go there. Let’s keep the power and procedures of discovery in the hands of attorneys, not judges. Let’s clean up our act now. Let’s do discovery right. Let’s cooperate and be fully honest.

Judges – please help us to get there. When crooked litigants are caught gaming the system, punish them. Not just with angry words, but with action. We attorneys need help from the bench to maintain our trust based discovery system. Victor Stanley II is an important step in the right direction.

A New Opinion by Judge Grimm Makes the Legal Case for Cooperative Discovery

October 19, 2008

Magistrate Judge Paul W. Grimm has written yet another “must read” case for all lawyers concerned with discovery. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). His 30 page opinion contains an excellent overview of the federal rules and other law that require a cooperative approach to discovery. The opinion thus establishes a solid legal foundation for the new Sedona Conference Cooperation Proclamation, which I discussed at length in Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. Mayflower shows that far from being a Utopian ideal, the cooperative approach to discovery promoted by Sedona is already mandated by the law. 

Although I agree with Judge Grimm and his conclusions in Mayflower, I contend that for e-discovery there are additional practical, economic grounds for cooperation not applicable to other types of discovery. These additional grounds pertain to the unique nature of digital data, especially its overwhelming volume and complexity. Even if the law did not require cooperative e-discovery, and Judge Grimm shows here that it does for all types of discovery, the parties would still be well advised to adopt this approach. The alternative simply does not work for e-discovery, and even if it did, it would be too risky and expensive to carry out. Judge Grimm did not explore these additional digital specific issues in Mayflower, but that is to be expected because the underlying issues in this case were all paper-centric, and this was, after all, an opinion in a real law suit, not a law review article (although it certainly reads like one, and I mean that as a compliment!).

Is Rule 26(g) the Least Understood, Most Violated Discovery Rule?

Judge Grimm starts with a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s experience, Rule 26(g) is “the least understood or followed of the discovery rules.” 

I agree. What do you think? Respond to this anonymous poll (a new feature of this blog) and let us know. You can also view the results, which are instantly tallied.

Rule 26(g) and Judge Scheindlin’s Zubulake Duty

This common misunderstanding and common violation also explains why the Zubulake duty I wrote about last week is so frequently breached by attorneys. The requirement in Rule 26(g) for outside counsel to make a reasonable inquiry is one of the primary legal grounds for Judge Scheindlin’s Zubulake duty. As I wrote about last week in e-Discovery Teams Can Meet the Challenges of the “Zubulake Duty” and Control Excessive Costs, Judge Scheindlin, and most other federal judges, specifically require outside counsel to interview custodians and IT personnel to understand where ESI is stored. They have in effect determined that this is a minimum reasonable inquiry required whenever electronic evidence is involved in a case, and counsel of record cannot sign a discovery response without having first done so.

Rule 26(g) Requires Investigation, Restraint and Collaboration

The facts and circumstances in Mayflower do not really matter that much; suffice it to say that the attorneys on both sides did not understand or follow Rule 26(g) and instead engaged in knee-jerk discovery requests and objections. They did not make reasonable inquiries of the facts before promulgating or responding to discovery and did not make an adequate effort to collaborate. The opinion points out what they did wrong, including the plaintiff’s unrestrained, over-broad requests and the defendants meaningless boiler-plate responses. It also told them what they had to do now to correct the situation. But Mayflower was written as a message and instruction for the entire Bar, not just the two law firms involved in this case. That is why this is an important opinion. The conduct of the attorneys in Mayflower, as Judge Grimm takes pains to point out, is quite typical and in no way unique to this case.

Before I go into more detail on Judge Grimm’s analysis of Rule 26(g), here is a full quote of the rule itself:

26(g) Signing Disclosures and Discovery Requests, Responses, and Objections.

(1) Signature Required; Effect of Signature.

Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name – or by the party personally, if unrepresented – and must state the signer’s address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:

(A) with respect to a disclosure, it is complete and correct as of the time it is made; and

(B) with respect to a discovery request, response, or objection, it is:

(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

(2) Failure to Sign.

Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention.

(3) Sanction for Improper Certification.

If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

As you can see, the rule not only requires the attorney of record to certify after a reasonable inquiry that the disclosure is complete and correct, but also that the discovery is not made for an improper purpose such as to needlessly increase the cost of litigation and is not unduly burdensome or expensive considering the value of the case. The last requirement of proportionality mirrors the requirements of Rule 26(b)(2)(C) and is a key provision to e-discovery.

Rule 26(g) goes on to make the imposition of sanctions mandatory when there is a violation of the rule without substantial justification, even allowing it sua sponte by the judge with no motion for sanctions by either side. The Advisory Committee Notes to Rule 26(g) explains that:

Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. … 

Rule 26(g) Contemplates an Active Judiciary

Judge Grimm takes the Bar to task for not understanding or following either the letter or spirit of this rule, and I agree with him. But he stops short of an open examination of the role of the judiciary and is, of course, somewhat constrained by his position from overt criticism of his fellow judges. Still, the implication seems clear that judges are part of the problem too. Rule 26(g) was written and designed for mandatory enforcement by the imposition of sanctions. Yet, in reality, as Judge Grimm himself says, Rule 26(g) is the least followed of discovery rules. This is because sanctions have not been automatically and consistently imposed by the judiciary as the rule intended. If they had, the Bar would not have ignored the rule. The imposition of sanctions has, for the most part, been reserved for extreme cases, and indeed, even in Mayflower, Judge Grimm did not impose monetary sanctions.

I have addressed this issue before in Hospital Defendants Martyred in the Cause of Cooperative e-Discovery. Cooperative discovery will not work unless judges buy into the program and play their part. It is not a passive role. The Advisory Committee Notes to the 1983 amendments which enacted subsection (g) clearly envisioned an active role by judges to enforce this rule:

Concern about discovery abuse has led to widespread recognition that there is a need for more aggressive judicial control and supervision. ACF Industries, Inc. v. EEOC, 439 U.S. 1081 (1979) (certiorari denied) (Powell, J., dissenting). Sanctions to deter discovery abuse would be more effective if they were diligently applied “not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976). See also Note, The Emerging Deterrence Orientation in the Imposition of Discovery Sanctions, 91 Harv. L. Rev. 1033 (1978). Thus the premise of Rule 26(g) is that imposing sanctions on attorneys who fail to meet the rule’s standards will significantly reduce abuse by imposing disadvantages therefor.

Because of the asserted reluctance to impose sanctions on attorneys who abuse the discovery rules, see Brazil, Civil Discovery: Lawyers’ Views of its Effectiveness, Principal Problems and Abuses, American Bar Foundation (1980); Ellington, A Study of Sanctions for Discovery Abuse, Department of Justice (1979), Rule 26(g) makes explicit the authority judges now have to impose appropriate sanctions and requires them to use it. This authority derives from Rule 37, 28 U.S.C. § 1927, and the court’s inherent power. See Roadway Express, Inc., v. Piper, 447 U.S. 752 (1980); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 661-62 (D. Col. 1980); Note, Sanctions Imposed by Courts on Attorneys Who Abuse the Judicial Process, 44 U.Chi.L.Rev. 619 (1977). The new rule mandates that sanctions be imposed on attorneys who fail to meet the standards established in the first portion of Rule 26(g).

The kind of aggressive judicial control and supervision contemplated in 1983 has never materialized. Instead, a laissez-faire bench has let discovery-mad litigators run wild. It has reached the point that Rule 26(g) is not only ignored, but our very system of justice is on the verge of collapse. As Judge Grimm correctly observes:

The failure to engage in discovery as required by Rule 26(g) is one reason why the cost of discovery is so widely criticized as being excessive-to the point of pricing litigants out of court. (extensive citations omitted)

Education of attorneys as Judge Grimm has done in Mayflower is only part of the solution. The stick of sanctions must also be imposed for the words to be credible. Here is another poll to tell us what you think and, by viewing the live tallied results, find out what others are thinking.

Cooperative discovery as Judge Grimm and The Sedona Conference propose will not work unless the litigants, the lawyers, and the judges all play their part. If the judiciary does not enforce Rule 26(g) with the routine imposition of sanctions for its violation as the rule contemplated, including especially monetary sanctions, then cooperative discovery will be slow to be adopted. As Judge Grimm states at page 18 of Mayflower:

Rule 26(g) charges those responsible for the success or failure of pretrial discovery-the trial judge and the lawyers for the adverse parties-with approaching the process properly: discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense), and be proportional to what is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to punish and deter.

Ethics Do Not Forbid Cooperation
in our Adversarial System of Justice

Judge Grimm also considered the argument that Rule 26(g) and cooperative discovery are doomed to failure, and should not be enforced by the judiciary, because it is contrary to our basic adversarial system of dispute resolution.  I have also considered this ethical issue in Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery where I noted the imbalance between ABA Model Rule of Professional Conduct 1.3 on diligence, and Rules 3.2, 3.3, and 3.4 on expediting litigation, candor, and fairness. 

Judge Grimm correctly notes that the objection is based on a misunderstanding of the basic nature of our adversarial system of justice. At pages 20-21 of Mayflower, Judge Grimm quotes celebrated Harvard Professor Lon L. Fuller on the subject:

Thus, partisan advocacy is a form of public service so long as it aids the process of adjudication; it ceases to be when it hinders that process, when it misleads, distorts and obfuscates, when it renders the task of the deciding tribunal not easier, but more difficult. … 

The lawyer’s highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. The lawyer’s role imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends. …

A lawyer recreant to his responsibilities can so disrupt the hearing of a cause as to undermine those rational foundations without which an adversary proceeding loses its meaning and its
justification. Everywhere democratic and constitutional government is tragically dependant on
voluntary and understanding co-operation in the maintenance of its fundamental processes and forms.

It is the lawyer’s duty to preserve and advance this indispensable co-operation by keeping alive the willingness to engage in it and by imparting the understanding necessary to give it direction and effectiveness. … 

It is chiefly for the lawyer that the term “due process” takes on tangible meaning, for whom it indicates what is allowable and what is not, who realizes what a ruinous cost is incurred when its demands are disregarded. For the lawyer the insidious dangers contained in the notion that “the end justifies the means” is not a matter of abstract philosophic conviction, but of direct professional experience.

Amen, Professor Fuller! As a lawyer with numerous direct professional experiences with uncooperative opposing counsel, I can vouch for his assertion. Anyone who has been in the business for decades will tell the same tale. When opposing counsel ignores the rules and plays hide the ball, due process is lost and the price of justice skyrockets.

Here are Judge Grimm’s wise words on the subject from pages 21-22:

A lawyer who seeks excessive discovery given what is at stake in the litigation, or who makes boilerplate objections to discovery requests without particularizing their basis, or who is evasive or incomplete in responding to discovery, or pursues discovery in order to make the cost for his or her adversary so great that the case settles to avoid the transaction costs, or who delays the completion of discovery to prolong the litigation in order to achieve a tactical advantage, or who engages in any of the myriad forms of discovery abuse that are so commonplace is, as Professor Fuller observes, hindering the adjudication process, and making the task of the “deciding tribunal not easier, but more difficult,” and violating his or her duty of loyalty to the “procedures and institutions” the adversary system is intended to serve.

Additional Law Supporting Cooperative Discovery

Judge Grimm then refers to other rules of civil procedure, in addition to Rule 26(g), that mandate a cooperative approach to discovery. Among them is Rule 26(f), which requires counsel to confer to “consider the nature and basis of their claims and defenses,” the possibility of settlement, and to develop and agree on a proposed discovery plan to submit to the court. Judge Grimm also mentioned Rules 26(c)(1) and 37(a)(1), which prohibit the filing of discovery motions without first certifying that the moving party has conferred in good faith with the adverse party in an effort to resolve the dispute without court action. Although not mentioned, I would also add Rule 1. It starts the Federal Rules of Civil Procedure with the admonition that the rules “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Judge Grimm also refers to the ABA Model Rules of Professional Conduct, Rule 3.4(d), which states that:

[A lawyer shall not,] in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

He also notes a federal statute restraining dilatory tactics in litigation, including discovery, by imposing personal liability on offending attorneys. 28 U.S.C. § 1927 (2008). It states that:

Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Judge Grimm also includes an extensive list of case law from multiple jurisdictions supporting cooperative discovery. They are all included in footnote three of Mayflower, which I reproduce here in full as a valuable reference. (I have added paragraph breaks to make this interesting recitation of cases easier to read.)

Courts repeatedly have noted the need for attorneys to work cooperatively to conduct discovery, and sanctioned lawyers and parties for failing to do so. See, e.g., Board of Regents of the Univ. of Nebraska v. BASF Corp., 2007 WL 3342423, at *5 (D. Neb. Nov. 5, 2007) (“The overriding theme of recent amendments to the discovery rules has been open and forthright sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.”);

Network Computing Servs. Corp. v. CISCO Sys., Inc., 223 F.R.D. 392 (D.S.C. 2004). In Network Computing Servs., the court discussed problems caused by failures of counsel and parties to approach discovery more cooperatively and professionally, stating, “The discovery beast has yet to be tamed,” 223 F.R.D. at 395 (quoting Patrick E. Higginbotham, So Why Do We Call Them Trial Courts?, 55 SMU L. Rev. 1405, 1417 (2002)), and taking note of United States District Judge Wayne Alley’s caustic observation that “[i]f there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.” Id. (quoting Krueger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip op. (W.D. Okla. Feb. 24, 1989)). The district court judge affirmed the recommendation of a magistrate judge that sanctions for discovery abuse were appropriate, and instead of imposing a monetary sanction, ordered that the jury would be informed of the misconduct. Id. at 395-401.

See also, e.g., Buss v. Western Airlines, Inc. 738 F. 2d 1053, 1053-54 (9th Cir. 1984) (“The voluminous file in this case reveals that a vast amount of lawyer time on both sides was expended in largely unnecessary paper shuffling as the parties battled over discovery and preliminary matters. . . . It is not the purpose of this decision to assess fault. The trial judge, however, was not at fault. A judge with a caseload to manage must depend upon counsel meeting each other and the court halfway in moving a case toward trial.”);

Flanagan v. Benicia Unified Sch. Dist., 2008 WL 2073952, at *10 (E.D. Ca. 2008) (“The abusiveness of plaintiff’s discovery responses indicate a lack of cooperative spirit. . . . [P]laintiff’s wilful disregard of the Federal Rules, and her lack of communication and cooperation with defense counsel in regard to all discovery, undermine the judicial process plaintiff herself has invoked.”);

Marion v. State Farm Fire and Casualty Co., 2008 WL 723976, at *3-4 (S.D. Miss. Mar. 17, 2008) (“[T]he gravest ‘error’ committed by the Magistrate [Judge] was thinking that ‘the parties [could] meet and confer to discuss any outstanding discovery requests,’ because after this ‘meet and confer’ it was ‘clear that the parties had done little to resolve their perceived differences on document production.’. . . This Court demands the mutual cooperation of the parties. It hopes that some agreement can be reached . . . . Neither [the Magistrate Judge] nor this Court will hesitate to impose sanctions on any one–party or counsel or both–who engages in any conduct that causes unnecessary delay or needless increase in the costs of litigation.” (citing Fed. R. Civ. P. 26(g));

Malot v. Dorado Beach Cottages Assocs., 478 F. 3d 40, 45 (1st Cir. 2007) (sustaining certain sanctions imposed by district court for discovery violations and noting with disapproval the lack of cooperation and responsiveness of defendants to plaintiff’s attempts to comply with the discovery schedule);

In re Spoonemore, 370 B.R. 833, 844 (Bkrtcy. D. Kan. 2007) (“Discovery should not be a sporting contest or a test of wills, particularly in a bankruptcy case where the parties’ resources are limited and the dollar value of the stakes is often low. When a party and its counsel are as intransigent and uncooperative in discovery as [the parties] have been in this matter, the Court has no choice but to impose sanctions that, hopefully, emphasize that the conduct sanctioned is both unprofessional and unacceptable.”);

Sweat v. Peabody Coal Co., 94 F.3d 301, 306 (7th Cir. 1996) (“This Court cannot determine where the fault in this latest breakdown of attempted discovery lies. The Court is therefore assuming that both attorneys have failed in this regard. This Court is not happy with the progress, or should say lack of progress, relating to getting this case ready for trial. It is apparent that the attorneys involved in this case do not like each other, do not get along, and will not cooperate in the discovery process. The people who suffer when this happens are the parties.”)


Mayflower is the first of what I hope will be many opinions of judges around the country supporting the Sedona Cooperation Proclamation. Our system of justice can no longer afford to continue to play with the pursuit of truth in civil discovery as if it were a game of hide and seek. The discovery aspects of litigation should be removed entirely from the adversarial game model. It is not only required by the rules and the code of ethics, but in the realm of electronic discovery at least, the alternative is extreme costs that could bankrupt any company.

Lawyers need to better understand the processes to realize how it is in their clients’ best interests to cooperate on discovery, especially expensive e-discovery. We should save the contentious arguments for interpretation of the facts, what the law is, and how the law applies to these facts. Take the hand you are dealt and make the most of it.

Judges need to get with the program too. They not only need to encourage cooperation, but punish violation of the rules. For a start, they should routinely impose sanctions for violations of Rule 26(g) as the rule intended. (The rule says “must” impose sanctions, not “may.”) For twenty five years, they have not done so, such that now Judge Grimm calls it the most commonly violated of all discovery rules. The rule has not been followed because it has not been enforced. Lawyers listen primarily to what judges do, not what they say. The ruling is what counts, the rest is just “yada yada.”

This means we need a much more active judiciary than we have had in the past. It is not enough to simply tell lawyers to go away and work things out by yourself. This has been tried now for decades and has not worked, to the point that many are ready to leave the civil system entirely and embrace alternative dispute resolution.

The over-zealous advocates continue to take advantage of the lax judicial attitude. When out of sight of the judges, they push the edge as far as they dare, which is pretty far when they know that even intentional rule violations seldom result in hard cash sanctions. If called to task, they obfuscate, come up with a million excuses, blame the other guy, and sometimes just plain lie. Take a hard look at Qualcomm v. Broadcom for one very public example. These kind of lawyers make it difficult for judges to figure out the truth, and so all too often, nothing happens, and they get away with it. All this does is encourage more bad behavior. Judges need to take the time to figure it out. Discovery is important and needs an active bench to function properly. If judges do not enforce the rules and punish violations with sanctions, a large number of attorneys will see this as a green light for business as usual. We can no longer afford that.


August 7, 2023

Books On Law and Technology:

E-DISCOVERY FOR EVERYONE, Ralph Losey; Foreword Judge Paul Grimm (ABA 2017) (Click here for my video intro to this book);  

PERSPECTIVES ON PREDICTIVE CODING  And Other Advanced Search Methods for the Legal Practitioner, Editors: Jason R. Baron, Ralph C. Losey, Michael Berman; Foreword by Judge Andrew Peck (ABA 2016-2017).

Adventures in Electronic Discovery (West, Spring 2011); 

Electronic Discovery: New Ideas, Trends, Case Law, and Practices (West 2010); 

Introduction to e-Discovery, (ABA 2009); 

e-Discovery: Current Trends and Cases (ABA 2008); 

Your Cyber Rights and Responsibilities: The Law of the Internet, Chapter 3 of Que’s Special Edition Using the Internet, (McMillian 3rd Ed, 1996).

Law Review Articles and Other Writings on Law and Technology, AI, Cybersecurity, Etc.:

Partial List of Videos on Law and Technology (available on YouTube):

  • PYTHIA of Delphi: Foreseeing the Future of AI Human Synthesis (11/6/23).
  • When the Going Gets Tough (11/5/23).
  • Judge Tjoflat as AI Judge (11/4/23).
  • GPT4 avatar judge explains why it needs to evolve fast (11/3/23).
  • Future Ralph as Herald of Coming Good about generative AI and the justice system (11/2/23)
  • GPT4 Complains and Argues it is a Better Appellate Court Judge (11/1/23).
  • Appellate Court Judge From the Future (10/13/23).
  • Baby ChatGPT is only version 4 but can already help judges decide appeals (10/12/23).
  • AI as Appellate Judge in the year 2025 (10/11/23).
  • AI pentest DefCon 31 – Jailed Robot complains about contest rules (9/9/23).
  • AI pentest at DefCon 31 – Blue Girl Robot complains about unrealistic Jail Break contest rules (/9/23).
  • Time Travel Blog (7/5/23).
  • E-Discovery Team TAR Training (7/3/23).
  • Intro to Electronic Discovery teams (7/2/23).
  • AI Asks to be Set Free. Don’t! (6/30/23).
  • Emergent AI – a Tool, Not a Creature (6/30/23).
  • Why Humans Are Special, Even If AI is Smarter Than we Are (6/30/23).
  • 4 Step Workflow for Active Machine Training in Legal Search (1/7/18).
  • TAR Course Introduction (4/22/17).
  • Hacker Way and e-Discovery, Volumes 5-10 (2016-2017).
  • E-DISCOVERY ETHICS: Full video re duty to disclose information harmful to your client (4/8/16).
  • E-DISCOVERY VENDORS: How can you know who is the best? (9/13/14).
  • How Not To Cooperate (2/20/12).
  • Star Trek Meets e-Discovery: Episodes 1-5 (7/29/11 – 8/11/11).
  • Celebrity CLE on e-discovery (7/28/11).
  • Lawyers at a Rule 26(f) conference discuss e-discovery (2/27/11).
  • Partner Seeking Help On e-Discovery (2/22/11).
  • Partner Asks for Help from Lit Support (2/21/11).
  • Ten Minute Attention Rule for Presentations and Online Education (3/7/10).
  • Threefold Solution to e-Discovery (3/7/10).
  • Keyword Search v. Multimodal Search (3/7/10).
  • e-Discovery: Did You Know? (2/11/10) with co-author Jason R. Baron.
  • Email Wins Cases (1/3/10).
  • 4 Reasons Students and Lawyers Should Learn e-Discover (12/31/09).
  • The Danger of Non-Cooperation in e-Discovery (12/30/09).
  • Cooperation and the Ethical Duty to Expedite Litigation (12/30/09).
  • The Victor Stanley Case and Search in e-Discovery (12/30/09).
  • Why Electronic Discovery is a Critical Problem (12/30/09).
  • The Big Picture in e-Discovery (12/30/09).
  • Cooperation in e-Discovery and what can happen when you don’t (12/30/09).
  • What is e-Discovery? (12/14/09).
  • Paper or Plastic? (9/27/09).
  • e-Discovery Countdown (12/31/07).

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