Play Nice or Pay the Price: Aggressive Discovery Tactics Can Prove Costly

October 15, 2008

A United States District Court recently awarded substantial attorneys’ fees to a defendant because it found that the plaintiff had filed an unnecessary motion to compel. In CBT Flint Partners, LLC v. Return Path, Inc., No. 1:07-CV-1822-TWT, 2008 WL 4441920 (N.D. Ga. August 7, 2008), the court awarded defendant Cisco Ironport Systems, LLC (“Cisco”) fees in the amount of $86,786.95, and a protective order from further production, stemming from plaintiff CBT Flint Partners, LLC’s (“CBT’s”) patent infringement claims and subsequent discovery dispute with Cisco. The court had previously imposed cost-shifting with respect to the plaintiff’s demand for a document review of 500,000 potentially privileged documents.

Specifically, the parties had negotiated a set of 102 search terms, which yielded approximately 1.4 million documents. The court recited facts showing the acrimonious approach the plaintiff had taken to discovery, and expressed particular displeasure at the burden the emergency motion to compel had placed on the court. The court found that an impending deadline for the completion of discovery was not adequate justification for the motion to compel, commenting that it would have granted a request for an extension of time.

The court found that CBT had failed to engage in meaningful good faith discussion during the requisite meet and confer process, and that CBT had made unfounded accusations of misconduct directed at defense counsel, which resulted in substantial cost to the parties and the court. The court wrote that, “as to the ‘potentially privileged’ documents, the Motion to Compel should never have been filed without a good faith discussion between counsel as to the search terms that were used to identify the documents.”

The judge was extremely critical of CBT’s aggressive approach to discovery. While such aggressive discovery tactics may have become the norm in many jurisdictions, parties can temper those strategic efforts by giving serious consideration to meet-and-confers, choosing their battles with respect to discovery disputes (and the accusations that flow therefrom), and being mindful of the burden placed on the court. The nature of electronic discovery and the large volume of documents involved can mean that the cost of discovery disputes and any resulting in camera reviews becomes disproportionately high. In light of these increased costs, the obligation to negotiate in good faith takes on greater importance.

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