The basic rule of discovery is that a party may obtain any information that is relevant to any claim or defense in the lawsuit. The free flow of information is of the utmost importance and this concept applies equally to expert eDiscovery services. In The Security National Bank of Sioux City v. Abbott Laboratories, No. C 11-4017-MWB (N.D. Iowa July 28, 2014), the judge took a firm stance against what he saw as a lack of civility during discovery.
The opinion stems from a product liability case against Defendant Abbott Laboratories and Plaintiff Security National Bank. Plaintiffs sued Defendants on behalf of a minor child for allegedly producing a baby formula that causes brain damage.
During trial, the judge filed a sua sponte order, which demanded that Defendants show cause for why they should not be sanctioned for making hundreds of baseless “form” objections while plaintiffs deposed their clients.
The judge, in describing the hallmarks of litigators that act in a manner similar to Defendants, noted:
1. Today’s litigators quickly dispute discovery requests, while slowly producing their own information;
2. Frequently object to production requests with boilerplate language, despite the fact that courts have consistently disapproved of such language;
3. Block clearly discoverable information from being obtained, essentially grandstanding for their clients; and
4. Use discovery to wage a “war of attrition.”
The judge found that Defendant attorneys deserved sanctions for:
1. Interposing an astounding number of baseless “form” objections during depositions;
2. Repeatedly interjecting during examination in a way that effectively coached witnesses to give specific answers; and
3. Excessively interrupting the depositions they defended which frustrated and delayed fair witness examination.
Further, the judge went on to impose a novel sanction against Defendants. He did not require a monetary fine, nor did he order repayment of fees incurred by opposing attorneys. Instead, he ordered Defendant lawyers to write and produce an instructional video for their firm’s internal use. The video itself was required to outline the steps lawyers must take to comply with the judge’s rationale behind his holdings in future depositions.
While the sanction was indeed novel, it helps us to see the importance of cooperation in the face of surging electronically stored information (ESI) and obstructionist practices during discovery.