Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia sent a clear message to litigants last week: repeated discovery violations will not be tolerated and may subject the violator to harsh sanctions, including waiver of privilege. In his May 9 ruling in DL v. District of Columbia,1 Judge Lamberth denied defendant District of Columbia’s (District’s) request for reconsideration of his April 7, 2011 order, which imposed privilege waiver sanctions with regard to all of the District’s as-yet unproduced email and ordered the District to produce all such email within one week after the close of trial.

The plaintiffs in this Individuals with Disabilities and Education Act (IDEA) case had been waiting almost six years for trial. Beginning on the first day of trial (April 6, 2011), however, the central issue in the case quickly became the District’s failure to timely meet its discovery obligations when the plaintiffs’ counsel informed the court that “document production from the District was still flooding into his office,” including the production of “thousands of e-mails just days before trial.” Indeed, the District intended to “continue to produce thousands of e-mails on a ‘rolling’ basis even after the trial concluded.” As the unproduced e-mails were from more than two years prior, no basis existed for such a lengthy delay in production, especially in a case in which discovery had been closed for more than two years. The court found the District’s explanation for its untimely rolling productions of email (which the District described as the result of a “supplemental search” that had been “ongoing for months”)completely unacceptable. The court especially noted the District’s failure to bring its delayed production to the court’s attention at either the pretrial conference or at any number of pretrial proceedings.