After Parties Engaged in "Abusive Litigation Tactics," Court Orders Clients to Consent to the Filing of Any Further Motions to Compel, Attend the Hearings on Such Motions and Pay the Any Ordered Sanctions

by Jeffer Mangels Butler & Mitchell LLP

After the district court granted a motion to compel in which it overruled the defendants' objections and ordered the defendants to provide complete responses to the interrogatories and to produce all responsive documents, the defendants provided supplemental responses but renewed the overruled objections and asserted additional objections that were not previously made. The district court found that renewing overruled objections and asserting new objections not previously made was disingenuous, but did note that the supplemental answers were comprehensive.

The district court found that there were still problems with the supplemental responses, including that "the defendants responded to requests to identify documents supporting interrogatory answers by referring" to "the documents already in disclosure, as well as those which will be provided by supplementation as discovery in this case progresses." The district court found this inadequate. "The defendants' response fails either to identify adequately the documents to be examined or to segregate and produce, on an interrogatory-by-interrogatory basis, the responsive document and produce them for inspection."

The defendants also "withheld from disclosure the most important documents pending the resolution of a dispute over the form of a blanket protective order which the defendants contend is necessary to protect confidential and trade secret information." The district court resolved this issue by entering a blanket protective order.

The district court then turned to the issue of the motion to quash a deposition that was filed because the lawyers could not agree on a location for a deposition. "In other words, the lawyers could not agree about whether to depose Mr. Nelson in Denver or in Fort Collins, cities approximately 64 miles distant. Mr. Culhane was available on the dates proposed by Mr. Blakeley and willing to take the deposition on one of those dates provided Mr. Nelson appeared in Denver without the necessity of a subpoena. Mr. Nelson was willing to waive the subpoena requirement provided the deposition occurred in Fort Collins rather than in Denver. Instead of compromising on the point, Mr. Culhane subpoenaed Mr. Nelson for a day he knew defense counsel were not available; Mr. Nelson's lawyers filed the Motion to Quash; and the matter was brought to hearing before me. This is an abusive use of the clients' resources and of the judicial system."

As a result, the district court found that "[c]ounsel have been engaged in discovery abuse and abusive litigation practices, and I will not tolerate it." The district court then imposed condition on the filing of any further motions on discovery matters. " To attempt to cause the lawyers to live up to their professional and legal obligations, I will impose the following requirements before any motions or briefs are filed in connection with discovery matters:

"(1) After the lawyers have exhausted their obligation to confer under D.C.COLO.LCivR 7.1(a), but before filing a motion or brief, the lawyers must meet with their clients, review the positions they are taking, and obtain their clients' direction to proceed. All discovery motions and briefs filed in connection with discovery matters must contain a certificate that the lawyer complied with this requirement, that the client understands the action being taken, and that the client expressly directs that the action be taken;
(2) Each client involved in a discovery dispute must appear in person at any hearing concerning the dispute. In the case of a corporate client, the president or chief executive officer must attend; and
(3) In the event I award a monetary sanction in connection with the discovery dispute, I will award it against the client in view of the certificate that the client directed that the action be taken."

Port-a-Pour, Inc. v. Peak Innovations, Inc., Case No. 13-cv-01511-WYD-BNB (D. Col. Apr. 17, 2014)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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