Monday, June 02, 2008

Players' motion for mandatory discovery

Via information the plaintiffs in the 38 suit (suit background info here) have filed a motion for mandatory discovery. The motion in pdf form is here. It was filed May 22 and posted today, June 2, at, a public information site enabled by the plaintiffs.

Excerpts from the motion - - -

Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, it is
mandatory, except in certain exempted proceedings which do not apply here, for the parties to confer “as soon as practicable” regarding “the nature and basis of their claims and defenses,” the plan for initial disclosures, preservation of relevant evidence, and for creating a discovery plan to govern among other things the timing and form of discovery.

The purpose of this mandatory conference is to attempt from the outset of an action to encourage parties “to frame a mutually agreeable [discovery]plan.”. . .

In accordance with the requirement in the Rules that the mandatory Rule 26(f) conference should occur “as soon as practicable” and certainly in advance of the court issuing its own scheduling order, Plaintiffs’ counsel has approached counsel for the Defendants in an attempt to schedule this conference and has been informed that Defendants will not participate in this conference while motions to dismiss are pending or until the Court schedules a discovery conference.

Since there can be no discovery until the Rule 26(f) conference occurs, by refusing to meet, Defendants are unilaterally instituting their own de facto stay of discovery without having sought the Court’s approval or explained why such a stay should be granted in this case.

There are compelling reasons why both the Rule 26(f) conference and
discovery should proceed expeditiously in this case. A significant part of a Rule 26(f) conference is discussing the preservation steps the parties are taking to ensure that relevant evidence is not lost.

This concern is especially paramount for electronically stored information (“ESI”) such as email that due to the routine operation of a computer system may get overwritten or made significantly more burdensome and expensive to retrieve with the passage of time. Waiting months, if not longer, while a motion to dismiss is pending to discuss what sort of information will be required in discovery, how ESI will be preserved, and how ESI and other information will be produced will likelycreate far more disputes and difficulties than if those issues are dealt with at the outset as Rule 26 intended. Moreover, it is a simple fact that time is not the friend of discovery.

The more time that passes, the more opportunity there is for relevant information to be lost or destroyed. Memories fade, servers crash, backup tapes get overwritten, etcetera.

While the parties should be able to agree on some reasonable limitations on
discovery while motions to dismiss are pending (and indeed the good faith attempt by parties to fashion these sorts of resolutions for a discovery plan is what Rule 26(f) contemplates), for the most vulnerable of evidence, such as email, discovery should not have to wait until the end of the motions practice or there is a very high chance that some relevant evidence will no longer exist.

Certainly the decision to forgo or otherwise frustrate any discovery, including discovery into email and other vulnerable ESI, should not be made by Defendants’ unilateral refusal to participate in the mandatory Rule 26(f) conference.. . .

For the foregoing reasons, Plaintiffs respectfully request that the Court either order the Defendants to participate forthwith in a Rule 26(f) conference or that the Court schedule an initial discovery hearing pursuant to Rule 16(a) of the Federal Rules, which will trigger the requirement that Defendants participate at least 21 days in advance in a Rule 26(f) conference. A proposed order is attached.


The proposed order is not available at I’ll contact the folks there and ask if they can post it.

At this time a lay person like myself can best serve you by calling the plaintiffs’ motion to you attention; presenting what appear to be especially salient parts of it; and providing a link so you can read the motion yourself and have it available when you read news accounts concerning it and the defendants response(s).

Once more, here’s a link to the full text of the motion.


Anonymous said...

for the most vulnerable of evidence, such as email, discovery should not have to wait
until the end of the motions practice or there is a very high chance that some relevant
evidence will no longer exist.

Remembering the history of Durham with regard to erased police tapes and lost cell phone records, I would think that is an understatement.