Cut The Crap: Cooperate Under Rule 26 or Look Like a Fool

Cozen O'Connor

An order issued by the court in Armstrong Pump, Inc. v. Hartman, 2014 WL 6908867, No. 10-cv-446S (W.D.N.Y. Dec. 9, 2014) provides a valuable lesson to all litigants—failure to cooperate under Rule 26 is no longer just unacceptable…it’s embarrassing.  In considering a motion to compel in the context of overly protracted discovery proceedings littered with delay and dispute, the court expressed “frustration with the continual and growing animosity between the parties, an animosity that has slowed the progress of the case and that has required repeated judicial intervention.” The court also noted its need to “manage the parties’ inclination to raise the stakes” and didn’t hesitate to mention that the parties’ “bickered” at oral argument about “who would get the last word.”

If that isn’t enough of a message, the court pointed out that certain of the movant’s brief citations amounted to a “disingenuous hint” that opposing counsel should be suspended “without actually saying so.” It’s as if the parties turned the notion of cooperation under Rule 26 on its head and in doing so pushed the court’s patience too far. The order aptly referenced the fact that the court system is only as good as the sum of its parts; in other words, without fairness amongst and between counsel, the system inevitably breaks down.

The Armstrong Pump order summarized the court’s reaction in one word: “Enough.” My reaction is similarly blunt: FINALLY.  In my view, this order is worth a read by any litigator involved in discovery—especially eDiscovery. The message is simple: each and every time a litigator feels his or her blood pressure rising because of an unnecessary discovery dispute, it’s worth taking a deep breath. Slow down. Stop. Litigators don’t serve a client’s best interests by becoming embroiled in nonsensical and childish discovery disputes.

As litigators, we should never compromise our roles as zealous advocates. But we also serve no benefit to our clients by forgetting what many of us first learned in the sandbox: the difference between mountains and molehills. The court in Armstrong Pump had reason to be particularly agitated since the non-moving party had plainly ignored prior orders requiring that the parties avoid piecemeal discovery productions to the extent possible.  The court also used the order to remind the moving party of the fact that the court would apply similar scrutiny to the moving party if necessary, i.e., it’s a two way street.

At bottom, we’re past the point where courts will tolerate the unnecessary bickering in discovery, and the Armstrong Pump order demonstrates that fact unequivocally. We all have a responsibility to act like adults, respect our profession, respect each other, and above all serve our clients without the distraction of unwarranted child’s play.


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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