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Metropolitan Opera Ass'n v. Local 100, Hotel Empl. & Rest. Empl. Int'l Union, 2003 U.S. Dist. LEXIS 1077 (SDNY, Jan. 28, 2003).

This matter came before the court on plaintiff's ("the Met") motion for sanctions for discovery misconduct by the defendant ("the Union") and defendant's attorneys. Among other allegations, plaintiff claimed that defendant's attorneys failed to conduct the required search for relevant documents, including email and other computer documents, in response to plaintiff's multiple discovery requests. The court ordered judgment against defendant and awarded attorneys' fees.

The factual background and procedural posture of the case was set forth in great detail in the court's lengthy written decision. Highlights of the court's restatement of the facts as related to document discovery included the following:
  • In response to the Met's counsel's continuing assertions of lack of an adequate document search and demonstrations of non-production, the Union's counsel repeatedly represented to the court that all documents responsive to the Met's document requests had been produced when, in fact, a thorough search had never been made and counsel had no basis for so representing;
  • Defense counsel knew the Union's files were in disarray and that it had no document retention policy but failed to cause a retention policy to be adopted to prevent destruction of responsive documents, both paper and electronic;
  • Defense counsel failed to explain to the non-lawyer in charge of document production that a document included a draft, or other non-identical copy, and included documents in electronic form;
  • The non-lawyer the Union put in charge of document production failed to speak to all persons who might have relevant documents, never followed up with the people he did speak to, and failed to contact all of the Union's internet service providers to attempt to retrieve deleted emails as counsel represented to the court that he would;
  • No lawyer ever doubled back to inquire of the non-lawyer Union employee in charge of document production whether he conducted a search and what steps he took to assure complete production;
  • In the face of the Met's counsel's constant assertions that no adequate document search had been conducted and responsive documents had not been produced, Union counsel failed to inquire of several important witnesses about documents until the night before their depositions; and
  • Shortly after the Met's counsel announced they might seek permission to have a forensic computer expert examine the Union's computers in an attempt to retrieve deleted emails, the Union replaced those computers without notice.
See 2003 U.S. Dist. LEXIS 1077 at *5-6. The court concluded that defendant's and defendant's attorneys' conduct comprised a "combination of outrages" sufficient to invoke the most severe sanctions available. In noting the reason for the decision to grant plaintiff's motion, the court indicated a desire to both punish the conduct of the individuals involved in this case, and to deter similar conduct by others in the future. Id. at *6-7.

Documents at issue in the ongoing discovery disputes between the parties included paper documentation as well as email messages, various drafts and "non-identical" copies of documents stored in paper and on computers, and other "electronically-stored" documents. Id. at *19. With regard to some of the requested documents, the court found evidence of willful intent to withhold or conceal information. With regard to other requested documents, the court concluded that, at the very least, defense counsel's efforts to coordinate and carry out a plan to locate, review and produce relevant documents was insufficient to meet the requirements of the discovery rules.

Conduct which was not overtly willful, but which rose to the level to invoke sanctions by the court, included:
  • Relying on non-legal personnel to make determinations about the scope of relevant documents;
  • Relying on non-legal personnel to search for relevant paper and electronic documents;
  • Failing to consult with individual employees about the existence and location of paper and electronic documents;
  • Failing to alert employees to their duty to retain email and other electronic documents that could be relevant to the case;
  • Failing to properly describe the definition of a "document" to employees so they understood that they had to retain and/or search for drafts, non-identical copies of documents, and documents stored on their computers; and
  • Failing to personally visit defendant's office to supervise or carry out the document production activities.
See, e.g., Id. at *19-23.

In granting the motion for judgment, the court noted that the Rule 26 provides a deterrent to discovery misconduct "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." Id. at *133.

The court also referred to the 2nd Circuit's recent decision in Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) for guidance in exercising the court's broad discretion to issue discovery sanctions pursuant to Rule 37. The court looked to Residential Funding and other similar cases as confirmation of the court's discretion to invoke severe sanctions even when merely negligent conduct leads to the destruction of documents resulting in an imbalance in the availability of necessary evidence. 2003 U.S. Dist. LEXIS 1077 at *136.

The court gave a clear indication of what defendant should have done, at a minimum, to properly discharge its discovery obligations. Defendant had a duty to "establish a coherent and effective system to faithfully and effectively respond to discovery requests." Id. at *141. According to the court's discussion, elements of that plan should have included:
  • A reasonable procedure to distribute discovery requests to all employees and agents of the defendant potentially possessing responsive information, and to account for the collection and subsequent production of the information to plaintiffs;
  • A method for explaining to their client what types of information would be relevant and responsive to discovery requests;
  • An inquiry into the client's document retention or filing systems, and implementation of a systematic procedure for document production or for retention of documents, including electronic documents; and
  • Proper supervision of all elements of discovery that were to be carried out by non-legal personnel.
The lesson learned by defense counsel in this case should resonate with any experienced litigator: "… a haphazard effort at collecting responsive documents is insufficient." Id. at *169.
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