“A federal judge in Washington, D.C., is demonstrating her impatience with pretrial document battles with a ruling titled ‘Order on One Millionth Discovery Dispute.'” [ABA Journal]
After receiving a complaint of health-status discrimination from a Royal Caribbean Cruise Lines employee, followed by a response from the company saying that the employee was a foreign national working on a foreign-flagged ship and therefore not subject to EEOC authority, the agency launched a massive fishing expedition:
(1) List all employees who were discharged or whose contracts were not renewed [from August 25, 2009, through the present] due to a medical reason.
(2) For each employee listed in response to request number 1, include the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual.
(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
(4) List all the persons who applied for a position but were not hired within the relevant period due to a medical reason
(5) For each person listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person [who] hired the employee, how the employee learned of the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
The cruise line complied in (massive) part, but not fully, “providing records for employees and applicants who were United States citizens” but not others. The agency took the dispute to court and proceeded to lose at every stage, the Eleventh Circuit being the latest to find its information demands burdensome and irrelevant: “The relevance necessary to support a subpoena for the investigation of an individual charge is relevance to the contested issues that must be decided to resolve the charge, not relevance to issues that may be contested when and if future charges are brought by others.” [Hunton and Williams; Phelps Dunbar]
Meanwhile, the commission has issued its fiscal 2014 performance report; in explaining a drop in resolved complaints, its public statement cites the “lingering effects of sequestration and the government shutdown” but not the marked skepticism that judges repeatedly showed toward EEOC positions through the year.
More from Scott Shackford, Reason: “Oppressive subpoenas like this happen all the time, which is probably why Houston didn’t even realize it was poking at a hornet’s nest. Cities across the country fight back like this against citizens attempting to exert their right to influence municipal policy. … If the targets hadn’t been pastors, would we even had known about the subpoenas?”
Massively overbroad discovery demands are among the most common abuses in civil litigation, and it’s hard to get judges or policymakers to take seriously the harm they do. But the City of Houston, represented by litigators at Susman Godfrey, may have tested the limits when it responded to a lawsuit against the city by a church-allied group by subpoenaing the pastors’ sermons along with all their other communications. [KTRK, Houston Chronicle; text of subpoena request; motion to quash] The city has already backed off in part, saying it will narrow the demands to focus on the issue of whether the plaintiffs were aware of petition procedures. [Jacob Gershman, WSJ]
Eugene Volokh has a useful analysis (more) of how churches, like reporters, do have some additional First Amendment protections against being asked to disclose just anything. But a way to protect litigants and third parties more systemically would be to narrow the scope of discovery generally (e.g. to information relevant to the actual claims and defenses in the suit) and shift more burdens of cost and proof to the demanders’ side.
I hope the city is shamed into calling off the fishing expedition entirely. That having been said, I find it fascinating that so much of the coverage in the conservative press downplays or omits the fact of the ongoing litigation (Todd Starnes buries it in paragraph 8, and Ted Cruz’s statement never even mentions it) thus leaving many readers with the impression that the city is using police or administrative powers to demand the information, which would pose an entirely different set of challenges for public liberty.
[Title updated 9 a.m.]
P.S.: This contentious courtroom dispute may previously have featured troublingly broad discovery demands from the other side, if one accepts as valid the comments of “Mike in Houston” at Stephen Miller’s post: “there’s no mention of the subpoenas coming from the anti-HERO side that have targeted a whole range of city employees, private citizens, nonprofits and pastors who spoke out in favor of the ordinance (and assisted with the pro-HERO organization efforts.)” Yet more: Sarah Posner, Religion Dispatches (various liberals, moderates, church-state separationists, and pro-LGBT figures critical of requests’ overbreadth).
U.S. District Judge Mark Bennett of the Northern District of Iowa, presiding over a product liability case, has asked defense counsel “to show cause as to why he should not be sanctioned for the ‘serious pattern of obstructive conduct’ he displayed” in a client’s deposition, which seemed aimed both at interruption for its own sake and at coaching the witness as to how to answer. “The attorney objected so many times that his name was found, on average, three times per page of deposition transcript.” [Nick Farr, Abnormal Use]
Rather than fine the lawyer, Judge Nelson ordered him to create and write a training video explaining the basis of the sanctions and demonstrating how to comply with the rules during depositions in state and federal court.
That’s putting it mildly. But issues like litigation holds and charges of spoliation, and discovery generally, are where much of the action is in mass torts. Beck explains at Drug and Device Law.
Federal judge Mark Bennett has resorted to what might be called a creative sanction against out-of-state law firm Jones Day following what he considered excessive interruption and witness-coaching during discovery in the case of Security National Bank of Sioux City v. Abbott Laboratories. [Above the Law]
Following widespread complaints, led by the business community, that the high cost of the discovery phase of litigation is enough to deprive parties of substantive justice, the Advisory Committee on Rules of Practice and Procedure in August of last year proposed amending the Federal Rules of Civil Procedure to make discovery less burdensome. Following a public comment period that ended in February it amended the proposals somewhat and submitted them to a standing rules committee which in turn approved them in late May “with the recommendation that the U.S. Supreme Court accept the changes. If approved, the proposed amendments will go into effect on December 1, 2015.”
- Tony Rospert and Rob Ware (Thompson Hine), working paper for Washington Legal Foundation on e-discovery costs;
- Beck, Drug & Device Law (“While hardly perfect, these changes to Rule 37(a) are a welcome step in the right direction.);
- Alison Frankel, Reuters, on the politics (trial lawyers and legal academics resisting reform);
- Adapted excerpt in Reason from the chapter on discovery (“The Assault on Privacy”) from my book The Litigation Explosion, 1991.
I was a guest Tuesday on the Roger Hedgecock program at the San Diego Union-Tribune, discussing the way Washington, D.C. seems to have come down at least as hard on Toyota as on General Motors, maybe harder, even though the safety shortcomings falsely attributed to Toyota appear actually to be present in the GM case.
One striking feature of the GM story is the extent to which a culture of putting as little as possible on paper appears to have undermined GM’s capability to grasp the scope of the safety problem with the flimsy ignitions and their relationship to nonfunctional airbags. Bill Vlasic of the New York Times reports:
To the legal department at General Motors, secrecy ruled. Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.
As I’ve often noted, organizations gripped by fear of legal consequences or hostile oversight often develop a “put as little as possible on paper” mentality, even though such a mentality regularly proves counterproductive to the organization’s mission by fostering ignorance and lack of coordination and allowing bad practice to take root.