ABA - News and Developments - Feedback from the Judges

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This ABA post by Anne Kershaw appearing on the Section of Litigation - Corporate Counsel - discusses the participation of judges in several panels at the recent Legal Technology Leadership Summit sponsored by the nonprofit Electronic Discovery Institute and offered thoughts that may be of interest to corporate counsel.

The topics addressed in this website post included:

• Defensibility of Linear Review;
• Failure to Use 502 Clawback Agreements as Malpractice;
• No IT Substitute for Lead Counsel; 
• Obtaining Opposed Clawback Agreements; and
• Mancia’s Warnings about Kneejerk Discovery Requests and Boilerplate Objections.

The article discusses a recent opinion by Magistrate Judge Paul Grimm, "In the session on "Feedback from the Judges," both Magistrate Judge Waxse and Magistrate Judge Lorenzo F. Garcia (D. NM) advised the audience to read the opinion of Chief Magistrate Judge Paul Grimm in Mancia v. Mayflower Textile Services, Co., 253 F.R.D. 354 (D. Md. 2008), a wage and hour action. In that opinion, Judge Grimm, raised sua sponte the issues of overly broad "kneejerk discovery requests served without consideration of cost or burden to the responding party," and "the equally abusive practice" of "boilerplate objections."

He analyzed those practices in the context of F.R.Civ. P. 26(g)(1), which requires a reasonable inquiry before filing discovery requests or responses, and F.R.Civ.P. 33(b)(4) and 34(b)(2), which require particularity for objections. Grimm noted that the duty to make reasonable inquiry before filing discovery requests includes the duty to first confer with the opposing party, and that blanket responses that discovery requests are "overboard and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence," indicate either a failure to conduct a reasonable inquiry or a waiver of particularized objections. He wrote, "It would be difficult to dispute the notion that the very act of making such boilerplate objections is prima facie evidence of a Rule 26(g) violation.""

Additionally the author provides a brief recap list of some useful points made by the Judges during the panel discussion, as follows:

 Corporate Takeaways from the Judges’ Comments

• At least one very influential Magistrate Judge appears receptive to technology-assisted review.
• It's fine to bring an IT person to a hearing, but lead counsel should be able to explain issues to the court.
• Seek 502 claw-back agreements, even if they are opposed by the other party.
• Confer with opposing parties before submitting discovery requests.
• Don't rely on boilerplate objections. State particularized reasons or lose them. Without them, you can’t object under F.R.Civ.P. 33(b)(4) or34(b)(2).
• To argue proportionality, provide the court with some estimates of the value of the case.