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Judge Royce Lambeth has imposed an inventive Rule 37 discovery sanction on the District of Columbia (D.C.), reports the ABA Journal.
In a class action, D.C.'s attorneys showed up for trial without having produced thousands of emails requested by plaintiffs in pretrial discovery.
D.C.'s attorneys protested they had too little staff, and that they "kept finding new caches of emails," reports the ABA Journal.
Finally, D.C. agreed to produce the documents on a "rolling basis" after the trial was over.
Comparing D.C.'s behavior to "a plane with landing gear that deploys just after touchdown," Judge Lambeth blasted what he called D.C.'s "unheard-of discovery violation." Judge Lambeth ordered D.C. to produce the emails within a week. Judge Lambeth included in his order that D.C. had waived all privilege issues from those emails, reports the ABA Journal.
And the April 6 bench trial went forward.
Litigators know never to rile a federal judge. But underneath this discovery dispute lurks a technology issue arising from an obscure corner of Federal Rule of Civil Procedure 37.
Rule 37 obligates parties to produce documents on demand before trial. Failure to produce documents to the other side gives rise to nasty consequences. A party who runs afoul of a court's order to produce documents risks not just monetary fines, but issues sanctions as well.
In flagrant cases, Rule 37 empowers a court to bar evidence, or even strike a party's pleadings and allow the other party to proceed by default.
But Rule 37(e) provides a safe haven for D.C. that might allow a "technology defense" in discovery disputes.
Rule 37(e) provides that "[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."
That certainly opens up a loophole.
We bet D.C.'s attorneys will highlight Rule 37(e)'s safe harbor on appeal. If Judge Lambeth's ruling gets modified in light of Rule 37(e), litigators can expect to be asking IT professionals for a lot of affidavits soon.