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Called Strike Three! The Tenth Circuit Strikes Out Plaintiffs for their “Discovery Karma”

Created: 04 May 2011 • Updated: 07 Jun 2011
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Appellate courts rarely weigh in on discovery issues.  When they do, clients and counsel should pay close to attention to the messages the courts are communicating.

That is why we have chosen to spotlight yesterday’s Tenth Circuit opinion in Lee v. Max International, LLC, which affirmed dismissal of the plaintiffs’ complaint for discovery misconduct.  The court reasoned that plaintiffs had “struck out.”  They had been given three chances – including two court orders – to produce key documents and failed on all three occasions.  Applying a pitch count to discovery abuses, the court reasoned that:  “three strikes is [sic] more than enough to allow the district court to call a litigant out.”

The take-home from the Tenth Circuit’s holding is more subtle than simply “produce your documents or else.”  The key to the decision was its reliance on Federal Rule of Civil Procedure 1 and the rule's decree “to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Though rarely invoked in the age of electronic discovery, Rule 1 provides a powerful message to litigants that they should discover information efficiently and cost effectively. Doing so would curb many of the abuses that consume the parties' resources in discovery.

Therefore, under Rule 1, it is not acceptable for parties to flaunt discovery requests and court orders when “tactically advantageous.”  Nor does Rule 1 allow parties to then declare “all’s well that ends well” by producing requested materials when threatened with sanctions.  Such misconduct – whether intentional or inadvertent – will likely merit harsh sanctions, just as it did for the plaintiffs in this case.

The message the Tenth Circuit sent then was to litigate efficiently and effectively, as Rule 1 requires.  Stop the gamesmanship, because “just as our good and bad deeds eventually tend to catch up with us, so do our discovery machinations.”  As the court urged, get “discovery karma.”  It will likely save precious time and money that counsel, client and court are now discarding into a growing cesspool of wasted eDiscovery resources.