Don’t ask for a production you’re not prepared to review

Murphy v. Piper, Civ.

In this class action, the court denied sanctions for a late-stage 2.5 million-page document production. None of that discovery was irrelevant or nonresponsive, making this a case of “be careful what you ask for, you just might get it.”

The plaintiffs, including Tenner Murphy, sued Emily Piper, in her capacity as the Commissioner of the Minnesota Department of Human Services. The plaintiffs allege that the state provides inadequate and substandard care for disabled individuals in state care facilities.

This case has been “riddled with discovery disputes” from the beginning, causing numerous amendments to the discovery schedule. The most recent scheduling order “expressly contemplated” that discovery might continue beyond the closing date.

In their latest mutually agreed discovery protocol, Piper stated that she would provide a rolling production of documents. On April 30, 2018, she advised the plaintiffs that a “substantial production” would soon arrive. The plaintiffs did not object.

True to her word, Piper produced 169,476 documents on May 8, constituting 2,599,281 pages. She advised that this production did not yet include documents for 12 custodians.

The plaintiffs promptly complained, in a letter to Piper, about the volume of discovery “dumped on” them. They claimed that receiving such a volume of production just before depositions was “extremely prejudicial” and “impossible” to use. Further, the plaintiffs claimed that they had “no warning” that “such a large production” was on its way.

After a meet and confer, Piper agreed to pare down her production. She reproduced a narrowed document set as a “courtesy,” but to no avail.

Instead, the plaintiffs moved for sanctions, complaining that Piper “ambushed them with a huge document production” without adequate warning. The plaintiffs admitted that they were aware of a forthcoming “substantial production” but not of its actual volume. Claiming prejudice, they sought sanctions, including the reopening of depositions.

The plaintiffs suggested that the court could impose sanctions under Federal Rule of Civil Procedure 37(b)(2) or its inherent powers. However, the court noted that it must “find sanctionable conduct” before it could impose sanctions.

Considering Rule 37(b)(2) first, the court held that Piper did not “clearly violate[]” the court’s scheduling order. That order expressly anticipated later productions and did not include any “substantially completed by” date. Nor did the plaintiffs object to any of Piper’s notices about forthcoming productions or their dates. Therefore, the court denied sanctions under Rule 37.

Turning to its inherent authority, the court weighed whether Piper’s voluminous production, “just weeks before fact depositions,” abused the judicial process. It noted that the parties had “hotly disputed the scope of discovery” through the entire pendency of the case. The plaintiffs had asked for a vast scope of documents and electronically stored information (ESI). For her part, Piper strenuously resisted that broad discovery, appealing “almost every discovery order” from the magistrate.

Altogether, it was “readily apparent” that “further document production … would occur” after the plaintiffs won the scope they sought. That the discovery was correspondingly massive was not, the court dryly noted, surprising. Where the plaintiffs “argued vehemently” for ESI going back to 2009, they could not object to receiving it.

The court acknowledged that Piper had estimated that she would produce only about 70,000 documents. However, she gave that “early estimate” as part of her argument that the plaintiffs’ requests were unduly burdensome. The plaintiffs could have “probed further” about what the estimate stood for but did not. Nor did they apparently inquire directly about the “total volume and timetable” for the rolling production.

All told, the court concluded that the “plaintiffs could have seen this document production coming”—and indeed, should have.

Additionally, the court noted that the production did not seem to include irrelevant or nonresponsive documents. In a footnote, the court took exception to the plaintiffs’ characterization of the production as a “document dump.” It noted that “the discovery produced corresponds to requests” from the plaintiffs.

In the court’s view, the lesson was clear: “be careful what you ask for, you just might get it.”

Ultimately, the court concluded that both parties “bear responsibility for the problem[s]” they encountered. Although Piper’s conduct was “unfortunate,” it was not sanctionable. The court denied the plaintiffs’ motion for sanctions.

Takeaways on Communicating Regarding the Scope of Discovery

The court here marveled how surprising it was that amid such contentious discovery, the parties never specified production dates or communicated about the volume of production. Remember that communication is a two-way street. Ask questions if you don’t know what your opponent plans to produce or when you’ll receive it. Additionally, it may go without saying, but when your opponent objects that the discovery you seek will be unduly burdensome to produce, consider that you’re going to have to review it too.

Questions About How to Scope Ediscovery? We’re here to help you understand your ESI so you can communicate clearly about what you have and what you’ll produce.

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