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This is the time of year for Best and Worst lists.  Our own lists of the best and worst drug and device law decisions of 2016 will be coming out soon.  Meanwhile, we have no doubt that the worst moments in our own day-to-day practice consist in litigating about litigation.  That is, whether on offense or defense, it is mind-numbing to fight over, not the merits of the case, but whether some party is complying with the rules of civil procedure.

We said “offense or defense,” but who are we kidding?  Discovery in our cases is wildly asymmetrical.  Plaintiffs grudgingly sign health record authorizations, while our clients are forced to disgorge millions of documents, at an expense many times over what most defendants in other civil litigations who have already been found liable (of course, our clients have thus far not been found liable for anything) end up paying in total. Producing electronically stored information (ESI) is virtually impossible to get fully right, but plaintiffs ask for, and all too frequently get, a requirement that corporate defendants furnish certificates of completion.  Such certificates are not required by any rules.  Somehow, overreaching plaintiffs have managed to persuade some courts to take something as silly and unrealistic as the discovery rules and make them even worse.   Pretty soon, court hearings devolve into plaintiff lawyers ruefully marching to the lectern to complain about alleged gaps in discovery and demand sanctions.  Forget about the fact that this litany of carping is on behalf of an inventory of plaintiffs whose mostly meritless claims go gleefully untested until the defendant waves a white flag and submits to a fairy tale otherwise known as a settlement grid.  Apropos of the season, we say humbug.

It is a pleasant surprise when a court calls an end to the discovery gotcha game.  That happened last week in Small v. Amgen, Inc., No. 2:12-cv-476-FtM-PAM-MRM (Dec. 14,  2016).  We have written on the Small case before.  See here, for example.  The issue teed up most recently in the Small case was the plaintiffs’ motion for sanctions under Federal Rule of Civil Procedure 37 for an alleged failure to comply with the court’s omnibus discovery order.  The Small court held that “[f]or all its sound and fury … Plaintiffs’ Motion fails – utterly – to identify any actual violation” of the court’s prior orders.   That magisterial “utterly” conveys a sense of weariness and frustration.  Yes, we know the feeling.

The plaintiffs in Small had tried to knit together a discovery violation from whole cloth, but the court was not fooled.  In the omnibus discovery ruling, the court had rejected the defendants’ resistance, “based on the temporal limitation alone,” to production of post 1998 documents.   At the same time, the court’s order recognized that the defendants might have other bases to object to production of post-1998 documents.  There are, after all, plenty of rules of evidence.  Thus, the defendants’ subsequent interposition of additional objections was in no way a violation of the court’s order.  Objections based on relevance and proportionality remained available and viable.  The court was plainly exasperated by the plaintiffs’ distortion of the terms of the omnibus discovery order:  “Plaintiffs’ apparent inability to discern these unequivocal limitations from the plain language of the Omnibus Discovery Order is, quite frankly, befuddling.” We must confess to being rather less befuddled.  It seems obvious to us that the plaintiffs realized that the merits of their case were fragile (see our prior posts on the Small case), and they would likely get more leverage from litigating about litigating.  Be that as it may, the court was also exasperated by the plaintiffs’ failure to comply with local rules for presenting a motion to compel discovery and by the “pervasive overbreadth and lack of reasonable particularity that characterized virtually all – if not all – of Plaintiffs’ voluminous written discovery requests.”

The Small court made clear that the omnibus order had resolved the general issue on temporality, but had not addressed the discoverability of any particular document.    Discoverability of particular documents would require particular requests and then, if necessary, particular motions to compel.  There must also be a meet-and-confer process, but the defendants’ “good-faith attempts to confer were frustrated by Plaintiffs’ counsel’s refusal to engage in a meaningful discussion.”

Consequently, because the plaintiffs had misconstrued the scope of the omnibus discovery motion, had failed to file a proper motion to compel, and had failed to meet and confer, the court not only denied the plaintiffs’ request for Rule 37 sanctions, but also denied any implicit or explicit request in the alternative for an order compelling production of particular documents.

In the game of gotcha, the plaintiffs not only lost, they are the ones who got got.  The Small court came up big.