The True Cost of Discovery Disputes

"The parties have done their level best to avoid and undermine the purposes of the meet and confer requirements," was Judge Lasnik's opening sentence for a recent ruling granting in-part a motion to compel discovery filed by Defendants Industrial Ventilation, Inc. This is a case for patent infringement brought by Pace International who owns U.S. Patent No. 6,723,364 ("Fog Treatment Method Using a Liquid Composition For Treating Fruits And Vegetebles")

While Defendants were granted some of the relief requested, their approach was harshly criticized in the order.

"In the circumstances presented here, compliance with the Rules would have involved face-to-face or telephonic communications regarding the particular deficiencies defendants perceived in plaintiffs’ discovery responses. Instead, defendants wrote two letters identifying deficiencies, demanding supplementation, and stating that if plaintiffs “would like to discuss this matter further,” they should contact defense counsel. In the midst of a separate dispute regarding defendants’ expert report, defendants demanded that plaintiffs “provide supplementation of discovery or renewed objections by the end of the day [October 9, 2009]” or defendants would proceed with a motion to compel. Decl. of Brandon H. Pace (Dkt. # 41), Ex. 13. Plaintiffs correctly pointed out that they had already agreed to supplement their responses, that the parties were not at an impasse, and that a motion to compel in that situation was not likely to succeed. Decl. of Brandon H. Pace (Dkt. # 41), Ex. 14. Plaintiffs ultimately failed to produce any additional documents or make any further response to defendants’ discovery requests by the end of the day on October 14, 2009. Defendants filed this motion on October 15th.

There is no evidence that the parties had substantive face-to-face discussions regarding any of the issues raised in defendants’ motion. As is clear from the memoranda, the positions of the parties were unknown when defendants filed their motion, a sure sign that the requirements of Rule 37(a) have not been satisfied. 

Defendants' were not alone in their receipt of criticism


The fault is not solely on defendants’ side, however. After indicating a willingness to reevaluate their objections and supplement their responses, plaintiffs failed to act, leaving defendants in the untenable position of having to restart the meet and confer process or file a premature motion. Because both parties are responsible for the failure to comply with the meet and confer requirements of Rule 37(a), the Court will address the parties arguments with the warning that future failures may result in sanctions under General Rule 3."


This is an unfortunate reminder how discovery disputes can undermine both litigants' credibility with the presiding judge.  Many other districts have magistrate judges handle discovery disputes.  In this district, by design, the presiding judge will hear discovery disputes.  Built into this system is a strong incentive to avoid discovery disputes at all cost, for it is rare indeed that one party will emerge from the dispute untarnished by the process.