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...