I remember when “apps” meant chips and salsa or maybe some buffalo wings and fried mozzarella sticks before dinner. “Apps” used to clutter my table. Now they clutter my tablet—largely thanks to my kids, who are as proficient with the thing as I am.
According to Apple, there is an app for just about anything. But not all apps are created equal. In fact, according to one federal judge, “some Apps are fatally flawed and should be recalled.”
Just last week, in Howard v. Segway, Inc., 2013 WL 869955 (N. D. Okl. March 7, 2013), U.S. Magistrate Judge Paul Cleary sanctioned Segway for discovery misconduct, awarding the plaintiffs fees and costs associated with a motion to compel. Judge Cleary concluded that—although the plaintiffs’ discovery requests were far from perfect—Segway’s discovery responses and corresponding document productions ran afoul of its duties under the Federal Rules.
Judge Cleary begins his decision by identifying what he considers “the core of the problem” and providing a stern, direct, and unequivocal warning re apps and discovery. He observes: “Apparently, Apps have been developed to assist attorneys in drafting and responding to Requests for Production of Documents.” (Such apps bring a whole new meaning to e-discovery, by the way.) He then concludes:
Consider this Order the recall notice for both of these Apps. They don’t work. Use may subject attorneys to sanctions under Fed.R.Civ.P. 37. If you have these Apps loaded on your firm network to provide a “go by” in preparing discovery requests, responses or objections, delete them. Now.
Judge Cleary does not identify the offending apps by name in his opinion. But his view on them is clear.
The problem with these apps, in the court’s view, is that they perpetuate the two fundamental ailments that plague pre-trial discovery: poorly crafted requests and unresponsive responses. Describing the Howard case as “the ‘poster child’ for what is wrong with the worst of pre-trial discovery,” Judge Cleary details the failures in that case and explains how they could—and should—have been avoided.
The plaintiffs do not escape unscathed in the court’s opinion. Judge Cleary finds that their requests “often fail to describe ‘with reasonable particularity’ what is being sought.” He blames plaintiffs’ requests for “set[ting] the stage for discovery problems because the recipient does not know specifically what is being requested.” Judge Cleary specifically takes issue with certain of the plaintiffs’ definitions—namely, “documents” and “communications.”
Practitioners often rely on stock definitions for such terms, and as ESI continues to expand—along with the ways in which we communicate with one another—so do these terms. Lawyers want to be sure that every conceivable form of ESI is captured so that an opponent can’t withhold responsive “documents” on the ground that they weren’t called for (e.g., “You didn’t include Tweets® in your definition of documents!”). The unfortunate result is a lengthy list that includes everything but the kitchen sink.
In an article providing guidance on how to properly conduct written discovery, Judge Cleary notes that “a fairly standard, definition of the word ‘document’ that is being used by numerous lawyers and law firms” exceeds President Lincoln’s Gettysburg Address by 34 words. He opines: “Never have so many words accomplished so little.” He rightly observes that the definition of documents within Rule 34 will be sufficient for most cases.
Plaintiffs’ failures in Howard did not insulate Segway from sanctions. Judge Cleary remarks: “Segway’s discovery responses make worse an already problematic situation.” He goes on to find that Segway waived its objections to the plaintiffs’ requests by asserting general, boilerplate objections.
Judge Cleary emphasizes the certification requirement—and corresponding duty—of Rule 26(g) of the Federal Rules of Civil Procedure. He warns: “This certification must be based upon the attorney’s ‘reasonable inquiry’ into the situation; thus, blind, boilerplate objections violate both Rule 26 and Rule 34.”
This is an important admonition for e-discovery, where counsel and clients too often assert burden and accessibility objections regarding ESI without first conducting the requisite inquiry to determine the merit of such objections. For example, ESI maintained for disaster recovery purposes may be unreasonably accessible or too burdensome to produce, but that is not necessarily so given technological advancements in recovering such data. Counsel must conduct a reasonable inquiry into the accessibility and burden before asserting such objections, and must support the objections with more than merely conclusory claims.
In Howard, according to Judge Cleary: “The biggest single problem with Segway’s document responses, however, is that when Defendant indicates documents will be produced, it is unclear what is being produced and what is not.”
E-discovery exacerbates this problem by increasing the volume, complexity, and variety of information produced in discovery. When a party produces hundreds of gigabytes or terabytes of information, it becomes even more critical that the producing party make clear what is being produced, what is not, and why. It’s hard enough to figure out with any precision what’s contained (and what’s missing) in a truckload of boxes. It’s impossible to figure out what’s contained (and what’s missing) on a hard drive loaded with millions of pages of documents—especially when that term is defined to include anything “holding spoken, aural, visual, written, electronic, or machine readable substance … includ[ing], without limitation, paper, phonographic, photographic, film, magnetic….” You get the idea.
So when it comes to discovery, apparently apps are for the birds—and better an angry bird than an angry judge.