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Law Firms Shamed for 'Discovery Gamesmanship'

By William Vogeler, Esq. | Last updated on

A $500 discovery sanction will not break any lawyer's bank.

But a sanction for "discovery gamesmanship" will put any law firm on the walk of shame. That's what happened recently to law firms in a federal case.

Baker Donelson and Corr Cronin were each ordered to pay $500 for trying to skewer an opponent for serving a response late -- one minute late.

Time Zones

It was an argument over time zones.

The plaintiffs' counsel sent a request for admissions to defense counsel, who responded by email at 12 a.m. Pacific Time. That was a day late, according to plaintiffs, because it was 2 a.m. their time -- Central Time.

In a motion for summary adjudication, the plaintiffs said the admissions were deemed admitted because they were late. Not only that, they said email service was improper because the parties had not consented in writing.

Defense counsel called the motion "an instance of egregious gamesmanship." The admissions response was at most one minute late, the opposition said.

"The Letter and the Spirit"

Judge Thomas Zilly was not amused, noting the parties had routinely exchanged discovery via email. He denied the motion and set a hearing to decide whether to sanction Baker Donelson and Corr Cronin $5,000 each.

Zilly said the plaintiffs' attorneys attempted to "use a misunderstanding as a weapon" in the case. He said the practice was "contrary to the letter and the spirit" of the Federal Rules of Civil Procedure and the local rules and practices in the Western District of Washington.

Reminding the parties and their counsel to "act reasonably and cooperatively in discovery," the judge reduced the sanctions to $500 each. Of course, it also made all the papers.

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