Opinion
00 Civ. 5141 (JSM)
October, 2000
OPINION and ORDER
This case presents an all too typical example of counsel unilaterally deciding that his client will not comply with its discovery obligation because of a perceived failure of an adversary to meet its own obligation. The Federal Rules of Civil Procedure do not, however, sanction resort to frontier justice. As Judge Sweet of this Court has previously noted:
As Rule 26(d), Fed.R.Civ.P. states, "methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery." Under the Federal Rules' liberal discovery regime, without judicial intervention a party can neither assert priority in discovery nor make its responses to another party's discovery requests contingent upon reciprocal compliance. . . . The appropriate remedy to another party's intransigence is not mutuality of non-performance, but rather a motion brought pursuant to Rule 37, Fed.R.Civ.P.
Burda Media, Inc. v. Blumenberg, 97 Civ. 7167, 1999 WL 413469, at *5 (S.D.N.Y. June 21, 1999) (citations omitted).
Because Plaintiffs had deliberately refused to respond to Defendant Seagate's discovery requests, the Court orally ruled at a conference with the parties that Plaintiffs waived all objections that could have been asserted in a timely response. Plaintiffs now seek a reconsideration of that ruling and ask that they be permitted to assert all appropriate objections. There is no question that:
Failure to timely assert objections to discovery requests may result in a waiver of all objections that could have been seasonably asserted. . . . Faithfully observed as well is the Federal Rules' requirement that extensions of response times be stipulated to in writing.
Id. at *5 (citations omitted).
In determining whether a party's failure to timely object to a discovery demand should result in a waiver of any objection, courts consider "the nature of the violation, its willfulness or cavalier disregard for the rule's requirements, and the harm which results to other parties." AFP Imaging Corp. v. Philips Medizin Sys., 92 Civ. 6211, 1993 WL 541194, at *3 (S.D.N.Y. Dec. 28, 1993).
Here, Plaintiffs' willful failure to respond to Defendant's request reflected a cavalier disregard for the rule's requirements. While Plaintiffs' counsel argues that he brought the dispute concerning the defendant's alleged failure to meet its obligations to the Court's attention, he never asked the Court for permission to defer his response or said anything to indicate that he thought he had any such right. Rather, he simply advised his adversary:
In light of Seagate's failure to respond in any way to plaintiffs' document request, plaintiffs will not respond to Seagate's document request at this time. Plaintiff will respond to the Document Request after the Court addresses Seagate's failure to provide any discovery to plaintiffs, and Seagate in fact submits a response to plaintiffs' document request.
In contrast, defense counsel asked the Court to stay its discovery obligation until the issues concerning its production could be resolved.
Letter from Block to Bucci of 9/15/00.
Given this deliberate and total disregard of the requirements of the Federal Rules of Civil Procedure, it is appropriate to enforce the rule that Plaintiffs waived their right to object to Defendant Seagate's document requests by not replying in a timely manner. Those who practice in the federal courts should understand that they are expected to comply with the rules and that conduct which "multiplies the proceedings in any case unreasonably and vexatiously" will have adverse consequences. 28 U.S.C. § 1927.
Thus, the Court denies Plaintiffs' application that the Court "permit plaintiffs to assert all appropriate objections to Seagate's Document Request." While the conduct here would justify a total denial of relief, the court is not unsympathetic to the fact that Plaintiffs should not suffer undue prejudice as a result of the actions of counsel. Thus, if Plaintiffs make a good faith production in substantial compliance with Defendant Seagate's document request, the Court will entertain an application for a protective order to prevent disclosure of a limited amount of information if plaintiff can establish that the information is privileged or contains highly sensitive trade secret information totally unrelated to the issues in dispute in this case, and which cannot be safeguarded adequately under a protective order.
SO ORDERED.