(1) Do you ordinarily hold hearings on discovery motions? If so, under what circumstances do you decide discovery motions without a hearing? If not, under what circumstances do you hold a hearing?
Salinger, J.: Yes, I usually hold a hearing on discovery motions. But from time to time the issues are clear enough on the papers that a hearing does not seem useful.
Krupp, J.: About half the time I hold hearings on discovery motions. I am more likely to hold a hearing where there are multiple issues, the issues appear particularly complex, where I perceive that the parties have not adequately conferred about the issue, or where it appears the lawyers’ relationship is interfering with their ability to resolve the discovery dispute.
Kazanjian, J.: Yes. I usually hold a hearing on discovery motions. In my experience, it is rare that the issues can be decided on the papers.
Ricciuti, J.: In almost all cases I will hold a hearing, as I think prompt and ongoing attention to discovery disputes is critical to achieving efficiency.
(2) Under what circumstances, if any, have you imposed, or are you likely to impose, sanctions in discovery disputes? What form have these sanctions taken?
Salinger, J.: Routine disputes about the scope of discovery do not justify a request for sanctions. But I have sanctioned parties for deliberate destruction or attempted destruction of relevant evidence. For example, I dismissed the counterclaims of a defendant that intentionally destroyed important financial records, and ordered a different party that tried to delete electronic files after litigation began to pay all costs incurred to the files.
Krupp, J.: Sanctions are appropriate for failure to abide by a prior court order, or for conduct during discovery for which there is no good faith basis (e.g. interposing obstacles to discovery of clearly discoverable evidence; behavior that disrupts a deposition; failing to prepare a Rule 30(b)(6) witness so that the Rule 30(b)(6) deposition is a waste of time, etc.). Sanctions most often include the attorneys’ fees and costs of the injured party, but I have also dismissed cases, and substantially curtailed arguments that could be advanced at trial, as sanctions in appropriate situations.
Kazanjian, J.: I do not think sanctions are appropriate in the ordinary discovery dispute. It would require something more egregious in my view, such as failing to follow a court order, or intentionally destroying or hiding information. Sanctions might be warranted for repeated violations of discovery rules.
Ricciuti, J.: I look closely at the facts and law and will assess sanctions – typically attorney’s fees under a lodestar analysis and costs – in cases where, for example, a court order was flouted or the non-compliant party’s position was not substantially justified or otherwise caused an injustice. I will consider more serious sanctions as the circumstances warrant.
(3) What level of detail do you require or prefer for parties’ statements pursuant to Superior Court Rule 30A(3)(c) regarding the scope of the search for responsive documents?
Are there occasions in which you have ordered a party to serve a revised statement?
Salinger, J.: Parties need to document all the physical and electronic locations where responsive documents might be found, and either certify that they have all been searched or explaining which have not been searched and why. Parties can usually resolve disputes over the adequacy of a Rule 30A(3)(c) statement.
Krupp, J.: I have rarely been presented with the issue.
Kazanjian, J.: It depends largely on the circumstances and the complexity of the production. The responding party should provide enough detail and specificity for opposing counsel to evaluate whether the responding party has adequately complied with its obligations.
Ricciuti, J.: In the few instances where this issue has arisen, I have strongly encouraged the parties to confer and have issued detailed orders to eliminate ambiguity in the absence of agreement
(4) How do you address emergency calls during depositions? How do you prefer parties to handle disputes that arise during a deposition?
Salinger, J.: It is best for the parties to work cooperatively to resolve disputes about the scope and conduct of a deposition, ideally well before the deposition. If court assistance is needed to get a deposition completed, the parties should finish what they can, suspend the deposition, and then serve and file an appropriate motion or request a court conference. An emergency call to the court in the middle of a deposition would only be appropriate if it would not be possible to suspend the deposition and restart it after a court ruling.
Krupp, J.: I have rarely been presented with the issue. In almost all instances, the deposition can be halted, a transcript prepared, and the issue presented to the court by motion under Superior Court Rule 9A. If a party believes an emergency call to the court is necessary, they may contact the session clerk to schedule an emergency hearing.
Kazanjian, J.: This should be a rare occurrence. The parties should be able to work cooperatively to resolve disputes during depositions. If there is an emergency, the parties should contact the clerk to see if a judge is available.
Ricciuti, J.: I have arranged to be available for such calls ahead of time when I am aware of the potential issue. Otherwise, the parties should finish the rest of the deposition and suspend only on the disputed issues, and the party seeking the testimony should promptly comply with Rules 9A and 9C and bring the matter to my attention. I strongly discourage delay under such circumstances.
| Date published: | April 1, 2022 |
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