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 sometimes 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. These hearings are almost always in person and the parties should try to narrow the issues prior to the hearing.
Squires-Lee, J.: I will hold a hearing if I need information from counsel not provided in the papers. If I can rule on a discovery motion on the papers, I will do so.
Do you permit parties to request an expedited decision or hearing on a discovery dispute without the need for motion practice and, if so, how?
Salinger, J.: If the parties have diligently conferred, and narrowed a discovery dispute to a simple question that they are confident I can resolve without formal motion practice, they should explain the issue in a short (2- to 3-page) joint letter that explains each party’s position and asks for a conference to discuss the issue with me. I’m happy to have those kinds of discussions. If it turns out that I need more information, we can always turn to more formal motion practice.
Krupp, J.: Yes. In appropriate cases, at the initial Rule 16 conference I have begun to schedule a status conference 30-60 days before the end of discovery – and more frequently if the parties believe it necessary – to address the status of discovery. The purpose of these conferences is to hear the parties on any discovery disputes that the parties have been unable to resolve after good faith discussions under Superior Court Rule 9C, which disputes are framed for the court in brief letters submitted shortly before the conference. Often, I am able to resolve the dispute or give the parties enough of my thinking about the dispute to permit them to resolve it. This process does not prevent the parties from filing more formal discovery motions under Superior Court Rule 9A, but it provides a streamlined option for addressing most discovery matters.
Kazanjian, J.: I follow the practice outlined by Judge Krupp. However, in order for the court to provide an expedited decision on a discovery matter, the issue must be precisely framed and capable of discussion in the short letter permitted.
Squires-Lee, J.: I have not done so in the time standards sessions, but would engage in the process described by Judge Salinger.
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. I am not of the view that every instance of professional discourteousness needs to be presented and dealt with by the court. It is your reputation in the legal community that is at stake when you do not act in a professional and courteous manner towards other attorneys.
Squires-Lee, J.: I will impose sanctions for deliberate discovery abuses including, without limitation, (i) failing to comply with a court order, (ii) inappropriate, uncivil, and unprofessional behavior at a deposition that interferes with the pursuit of discoverable information (such as repetitive, lengthy, speaking objections and / or conferring with a witness on answers to questions), (iii) intentional obfuscation of discoverable material short of spoliation, (iv) failing to prepare a Rule 30(b)(6) deponent, and (iv) any other conduct intended to impede the administration of justice.
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.
Squires-Lee, J.: It depends on the case, but the intent of the rule is to require a description that enables the other side to understand fully the scope of the search conducted.
How do you address emergency calls during depositions? How do you prefer parties to handle disputes that arise during a deposition?
Salinger, J.: I agree with Judge Kazanjian that this should be a rare thing. And, in my experience, it has been. Parties need 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.
Squires-Lee, J.: I agree this is and should be very rare. In most circumstances, including bad faith conduct, the aggrieved party should make the record clear, finish the deposition if possible or suspend the deposition if not, and file a motion under 9A. An emergency call to the clerk would be appropriate only in rare circumstances, such as the trial deposition of an elderly or ill witness.
| Date published: | April 1, 2022 |
|---|---|
| Last updated: | May 15, 2024 |