April 7, 2025 • 21 mins
Magistrate Judge Scott Hardy delivers a masterclass on what the meet-and-confer requirement really means in federal litigation—and the serious consequences of failing to cooperate in discovery.
In this riveting breakdown of Wilbert v. Pyramid Health, we explore how one attorney's "mandatory" approach to ediscovery backfired dramatically. When plaintiff's counsel served a 30-page "Mandatory ESI Plan" on opposing counsel and then allegedly created "egregious barriers" to meaningful discussion, the court didn't just deny his motion to compel—it ordered him to show cause why he shouldn't face sanctions.
The decision highlights a troubling trend judges call the "drive-by meet-and-confer," where attorneys go through the motions without actually engaging in good faith discussions. Judge Hardy leaves no room for interpretation: "The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process." This clear statement reminds practitioners that cooperation isn't optional—it's required by the rules.
For litigators handling electronically stored information, this case serves as both warning and guidebook. We explore why having internal ediscovery protocols is wise, but attempting to unilaterally impose them on opposing counsel is a recipe for disaster. The discussion includes practical takeaways for ensuring your discovery approach satisfies proportionality requirements while avoiding the pitfalls that led to potential sanctions here.
Whether you're crafting discovery requests or responding to them, this analysis will help you navigate the complex landscape of ediscovery cooperation with greater confidence and effectiveness. Subscribe to hear more insights on how to leverage ESI while staying within the boundaries courts expect.
Links mentioned in episode:
Wilbert v. Pyramind Healthcare, Inc.
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Minerva26 Website
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Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on ediscovery, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy. Join us next episode as we break down another important case shaping the future of ediscovery.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:05):
Hi and welcome to our Case of the Week segment of
the podcast, where each week,we break down a recent decision
in electronic discovery case lawand talk about the practical
impact for you and your clientsand keep you up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:28):
My name is Kelly Twigger.
I am the principal at ESIAttorneys, a law firm for
information law and e-discovery,and the founder of Minerva 26,
currently just rebranded frome-discovery assistant, where we
take the insights from ourpractice and provide a strategic
command center for you toleverage the power of ESI.
Thanks so much for joining metoday.
(00:50):
Now, this week's decision on ourcase of the week comes to us
from the case of Wilbert versusPyramid Health, and it's a
lesson on what the meet andconfer requirement of the
federal rules really means.
For more than a decade now, wehave had discussions with judges
and attorneys about the quotedrive-by meet-and-confer, in
(01:12):
which parties are not preparedto discuss the issues that are
necessary, haven't learned whatthey need to know from their
clients, and they show up in anadversarial manner that is in
completely contrary to theentire purpose of the meet and
confer.
Hat tip to Dan Regard of IDCfor identifying this decision
for us during last week's legalweek.
(01:34):
Now this decision today is fromUnited States Magistrate Judge
Scott Hardy who, by the way, hasthe same name as my fabulous
brother who, by the way, has thesame name as my fabulous
brother.
And Judge Hardy obliteratescounsel here for their behavior
in conducting meet and confersessions with defense counsel
and then misrepresenting it tothe court by way of a
certificate attached to hismotion to compel.
(01:57):
Let's dive in Now.
The plaintiff here brought acomplaint for pregnancy-based
discrimination and harassment,culminating in her termination.
According to the court, theparties have disagreed on how to
handle the discovery of ESIthroughout the matter.
We are before the court here ona motion to compel that was
filed by the plaintiff and byits counsel, joshua Ward.
(02:19):
In what is never a good signfor the moving party on a motion
to compel, the court began itsruling with an in-depth
discussion of the various rulesthat require the parties to meet
and confer prior to filing amotion.
Starting with Rule 26'srequirements of relevance and
proportionality, the court thenmoved to Rule 401 on relevance,
(02:43):
and then to Rule 37 governingdisputes.
The court then circled back toRule 26's limitations on
accessibility and duplicativediscovery before diving into the
requirement that the partiesmeet and confer in planning for
discovery.
As part of that specificdiscussion, the court noted that
(03:26):
during the meet and confer theparties quote must discuss faith
to agree on the proposeddiscovery plan and for
submitting to the court awritten report outlining the
plan.
That is all in accordance withFederal Rule of Civil Procedure
26F2.
The discovery plan, accordingto the court here, must state
the party's views and proposalson several topics delineated in
(03:47):
Rule 26F, including issues aboutdisclosure, discovery or
preservation of electronicallystored information, including
the form or forms in which itmust be produced.
The court also notes that therules empower the court to order
the parties to meet and conferin person, which needs to be
(04:07):
used much more often, in myopinion.
The court then notes that Rule37F allows the court to require
a party or its attorney to paythe other party's reasonable
expenses if the party or theattorney fails to participate in
good faith in developing andsubmitting a proposed discovery
plan under Rule 26.
(04:29):
Now, if that doesn't set astage for what's to come, I
don't know what does?
The court then went on toexplain how those requirements
of the federal rules arefurthered by local rules in the
United States District Court forthe Western District of
Pennsylvania, where this matteris pending.
Local Rule 2.6 from the WesternDistrict imposes a duty to meet
(04:52):
and confer both at the Rule 26Conference and following
requests for ESI.
Included in that requirement iscounsel's obligation to confer
with their client and quote,investigate their client's ESI
systems to understand how suchESI is stored, how it can be or
(05:12):
how it has been or can bepreserved, accessed, retrieved
and produced and any otherissues to be discussed at the
Rule 26F Conference.
The court notes that theattorneys must also identify a
person or persons with knowledgeabout their client's ESI, with
the ability to facilitate,through counsel, preservation
(05:33):
and discovery of ESI.
Close quote In addition tothose local court rules,
magistrate Judge Hardy pointedto the presiding judicial
officer's published practicesand procedures regarding the
parties to jointly contactchambers to schedule an informal
status conference for discoverydisputes.
The court then stated that nodiscovery motions are to be
(05:57):
filed until after the conference, except in the cases of
emergency as certified bycounsel.
Cases of emergency as certifiedby counsel.
Counsel is also required underthe presiding judicial officer's
practices and procedures tofile a certification quote that
the movement has discussed thematter with all other parties
and to expressly indicatewhether the opposing party
(06:19):
consents to or opposes themotion and whether such party
intends to file a response.
Close quote Now.
Having laid out all of theapplicable rules for counsel to
follow, the court then turned tothe facts of this case and
plaintiff's compliance, or Ishould say lack of compliance,
with them.
As I mentioned at the outset,the parties could not agree on
(06:41):
the scope or methodology fore-discovery in this case.
On April 3rd 2024, counsel forplaintiff served 25 separate
requests for production titledrequest for ESI search.
Now, that's a new title for meand, interestingly, not what
rule 34 contemplates, but Idigress.
In conjunction with those 25RFPs, counsel served defendant
(07:06):
with the Ward Firm ESI plantitled JP Ward and Associates
LLC.
Mandatory Rule 26F2,3 ESIDiscovery Plan for Use in
Employment Law Cases.
That plan was a 30-pagedocument that allegedly outlined
(07:26):
his law firm's standardprocedures for the Rule 26F
conference and subsequentproceedings.
Now, the court absolutely lovedthe use of the word mandatory
in the Ward Firm ESI plan,finding that it reinforced
attorney Ward's intent to imposeextensive ESI protocol
(07:47):
requirements on opposing counselin employment cases and that it
far exceeded the scope anddepth required by the district
court's checklist for meet andconfer, as well as its
guidelines.
The court also found that, inthe court's estimation, the ward
firm ESI plan frames certainconferral elements in an
(08:07):
argumentative and non-negotiablemanner, suggesting an
unwillingness to modify itduring the required conferral
process.
I have to wonder whether, infact, this document was meant to
be shared with opposing counseland with the court.
Probably not.
The firm ESI plan required thatdefendants not be permitted to
(08:28):
conduct their own collection,but instead be required to hire
a third party vendor to do it.
If you're raising your eyebrows, so am I, so am I.
That fact, combined with thesheer breadth of the requests
and the inclusion of terms thatwere not related to plaintiff's
claims and plaintiff's counsel'sadamance on how quickly they
should be complied with, allleft the court with a less than
(08:50):
positive view of counsel'sactions.
All of those issues werediscussed at a case management
conference at which the courtexpressed its disapproval of
plaintiff's counsel's tacticsand directed counsel to confirm
meaningfully on the issues byissuing an order.
The parties were not able toresolve the issues under that
(09:10):
order and months later submitteda joint letter to the court,
after which the court grantedattorney ward leave to file this
motion to compel.
That order granting the leaveto file was also accompanied by
a certification of was requiredattorney ward to also accompany
his motion with a certificationof conferral and to include the
(09:34):
specific factual basis for eachclaim, each discovery issue,
supported by affidavits ordeclarations.
Attorney Ward then filed themotion to compel, and that's
what the ruling is on here Now.
As you may have guessed by now,counsel's motion and supporting
materials fell far short ofwhat the court ordered.
The motion did not includesupport for factual assertions
(09:58):
or specify each discovery issuethat was the subject of the
motion, both of which the courthad ordered.
The court first objected to theoverly broad requests and scope
of custodians asked for byplaintiffs and noted that, while
defense counsel had attemptedto confer with Ward, ward either
ignored their overtures orimposed quote egregious barriers
(10:19):
to doing so.
According to the court, wardfailed to explain the relevance
for each of his proposedcustodians and failed to meet
his burden.
As such, the court denied themotion to compel.
The court also rejected Ward'sinsistence that defendants had
run hit reports on all of hissearch terms before determining
whether those search terms wererelevant.
(10:39):
The court noted that quote.
Attorney Ward has chosen toignore the court's observations
in this regard and persists inhis insistence that defendants
expend the time, effort andresources to search the
computers and phones of a wideswath of custodians relevant or
not for a wide range of searchterms relevant or not, and for
(11:03):
an overly broad time periodrelevant or not relying instead
on the apparent authority of hisown ward firm, esi plan.
Close quote.
In essence, and I reallyencourage you to read this
opinion, the court found thatcounsel had failed to identify
an appropriate time period and ascope of discovery that fit
(11:25):
within the allegations of thecomplaint.
Plaintiff's counsel had alsodefied the court's order
regarding the scope of thematter.
As a result, the court foundthat Ward's motion did not
satisfy that burden under Rule37, and, in denying the motion,
issued this quote.
The court is also of the viewthat Attorney Ward's
self-proclaimed mandatoryapproach to ESI discovery in
(11:47):
employment cases not onlycontravenes several provisions
of the federal rules of civilprocedure and this district
court's local rules, butAttorney Wardards unilateral
imposition of such ESI protocolsin all such cases also defies
the requirement that evenrelevant discovery must be
(12:08):
proportional to the needs of thecase, considering the
importance of the issues atstake in the action, the amount
in controversy, the party'srelative access to relevant
information, the party'sresources, the importance of the
discovery in resolving theissues and whether the burden or
expense of the proposeddiscovery outweighs its likely
(12:28):
benefit.
Citing federal rule of civilprocedure 26B1, it is evident
that in this case, attorney Wardhas ignored his duty to refrain
from discovery efforts that areunreasonable or unduly
burdensome or expensive in thecontext of those proportionality
factors.
Close quote.
(12:50):
The court then turned tocounsel's behavior, and that's
never a good sign.
The court took significantissue with Ward's behavior,
including insisting on mandatoryprotocols, making
disproportional discoveryrequests and then insisting that
any objection proposed bydefense counsel was a failure to
confer and subsequentlyrequiring that defense counsel
(13:14):
hire an outside vendor toconduct collections.
Now I know I've given you a lotof quotes, but this one from
Magistrate Judge Hardy kind ofsays it all, and I want you to
pay attention to this, becausewe've gotten away from the
cooperation in e-discovery thatis required to make it cost
effective and meet everyone'sneeds.
So pay attention to this quotethe conferral obligation is not
(13:37):
a bargaining chip to be offeredin exchange for a concession on
a disputed discovery process orrequested item.
Conferral is expected for alldiscovery planning and dispute
resolution and is a preconditionto seeking court intervention.
A party might also not imposeunreasonable conditions or
(13:58):
barriers on their willingness tomeet and confer.
Here defense counsel contendsthat attorney Ward insisted that
he would only meet in person toconfer if defense counsel
acquiesced to his demand thatsuch a meeting be recorded.
Such obdurate behavior in thiscase lacks justification, defies
(14:18):
the bounds of expectedprofessional behavior and was
seemingly deployed to harassdefense counsel and thwart any
meaningful and constructiveattempts at resolving the
party's disputes.
Close quote as a result ofWard's behavior, defense counsel
refused to meet in person underthe proposed conditions and
continued conferral efforts inwriting.
(14:39):
Under the proposed conditionsand continued conferral efforts
in writing.
Despite all of this, wardaffixed a certificate of meet
and confer to his motion, ascompelled by Rule 37A, and the
court found that Attorney Ward'sconduct did not satisfy his
obligation to confer in goodfaith and ordered Ward to show
cause why he and his law firmshould not be sanctioned for one
(14:59):
failing to participate in goodfaith in developing and
submitting a proposed discoveryplan as required by Rule 26F and
all related court rules, and tomisrepresenting to the court
that he has satisfied hisconferral obligations in good
faith before filing the motionto compel as required by Rule 37
(15:20):
.
All right, with all of that,what are our takeaways from
today's decision?
I love this decision becauseMagistrate Judge Hardy is
holding plaintiff's counsel tothe standard of cooperation that
should be required of everyparty in order to facilitate
discovery.
There's a lot of debate aboutwhether or not judges have the
(15:41):
time and bandwidth at thefederal and, in some cases, the
state court levels to be able tomanage counsel in terms of
cooperation and proportionalityin discovery issues.
It's a problem, and what Iwould suggest is that more
courts, like Judge Hardy doeshere, hold these parties to a
standard so that they know,coming into his court, that he
(16:03):
will hold them to therequirements of cooperation and
proportionality in the federalrules of civil procedure.
Now, there's no question herethat the discovery of ESI is
complex and it requires newprocesses and procedures than
discovery in paper did before.
Looking back, however, becauseI started practicing when we
still had paper, I'm not surethat we couldn't have used more
(16:25):
of these rules of paper, butthat's another topic altogether.
E-discovery requirescooperation, and the meet and
confer process is where thatcooperation takes place.
We have to have it Now.
I do want to give kudos to theplaintiff's law firm for
actually having guidance here inits plan on how to engage in
(16:46):
discovery and the best way toget discovery for their clients
in the type of law that theypractice.
I preach that every week.
You need to know what yourdiscovery obligations are for
the type of law that youpractice and the clients that
you have.
You don't need to be all seeingall of the time, stay up to
date on what's happening,understand what the issues are
(17:08):
and then learn them as you needto for your matters, but how you
lay out that information in aguide is crucial.
I'm going to guess that thefirm here, as I mentioned
earlier, never anticipated thatthe guide would be sent to
opposing counsel or that itwould end up in court.
So the takeaway really is thisGive your lawyers guidance on
(17:30):
how to handle e-discovery, butmake sure you train them
effectively on how to use thatguidance.
It doesn't look like thathappened here, and the language
and confrontational nature ofthe guidance from the firm did
not play well with the court.
It is no secret that defensecounsel with more resources
(17:50):
regularly try to run overplaintiff's counsel in discovery
.
But there is a middle ground towhat occurred here.
You can't fake knowing how todiscuss e-discovery you just
can't.
And when you try, because youhaven't taken the time to learn
what you were doing, you mayjust end up having to show the
court why you shouldn't besanctioned.
(18:11):
Misrepresenting anything to acourt is the quickest way to
undermine your client's case.
Judges are humans and you needthe judge to trust your word can
be relied on.
We all know that once bitten,twice shy, and that applies in
court as well.
The adversarial nature oflitigation needs to be tamped
down to properly deal withe-discovery and to feel
(18:35):
confident, stepping away fromthat adversarial position.
You need to feel confident inhow you deal with ESI.
Blindly following a guide or achecklist from a court or a form
someone gives you is not thesame and it will cause you to
miss positions for your clientor end up like counsel did here.
(18:55):
Finally, know the rules of thecourt you are in.
The Western District ofPennsylvania has local rules and
Magistrate Judge Hardy pointedto the presiding office the
presiding judge's chief casemanagement order.
When you have a case before ajudge, the judge's local rules
or whatever carries the day inyour case should be sitting on
(19:18):
your desk.
I used to keep mine in a filefolder by case sitting behind me
so I could reach over and justgrab them.
Bookmark them on your browser,if that's the way you prefer to
work.
You need to be re-reviewingthose rules regularly so you
have them in your head asstrategy.
Plaintiffs Council didn't dothat here.
(19:39):
Discovery is rule-driven and thecomplexity of e-discovery means
that you have to know andleverage the rules and the case
law in your strategy.
Learn from the mistakes thatplaintiffs counsel made here.
Don't just blindly follow aguide.
Know exactly what you need toknow for purposes of your case.
All right, that's our case ofthe week for this week.
(20:02):
We'll be moving to doing thecase of the week every other
week to be making room for othercontent on our newly branded
Meet and Confer podcast.
So be sure to tune in for ournext episode, whether you're
watching us via our blog,downloading it as a podcast on
your favorite podcast platformor on social media.
You can also find the backissues of Case of the Week on
(20:23):
the favorite podcast platformand be sure to subscribe.
Thanks so much.
Have a great week.
Thanks for joining me on theCase of the Week podcast Tune in
next episode as I discuss a newdecision in e-discovery case
law and identify the issues youneed to be paying attention to
and how they can help you dobetter discovery for your
clients and leverage the powerof ESI.
Be sure to subscribe and leavea review to help others discover
(20:45):
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
Hi and welcome to our Case of the Week segment of
the podcast, where each week,we break down a recent decision
in electronic discovery case lawand talk about the practical
impact for you and your clientsand keep you up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:28):
My name is Kelly Twigger.
I am the principal at ESIAttorneys, a law firm for
information law and e-discovery,and the founder of Minerva 26,
currently just rebranded frome-discovery assistant, where we
take the insights from ourpractice and provide a strategic
command center for you toleverage the power of ESI.
Thanks so much for joining metoday.
(00:50):
Now, this week's decision on ourcase of the week comes to us
from the case of Wilbert versusPyramid Health, and it's a
lesson on what the meet andconfer requirement of the
federal rules really means.
For more than a decade now, wehave had discussions with judges
and attorneys about the quotedrive-by meet-and-confer, in
(01:12):
which parties are not preparedto discuss the issues that are
necessary, haven't learned whatthey need to know from their
clients, and they show up in anadversarial manner that is in
completely contrary to theentire purpose of the meet and
confer.
Hat tip to Dan Regard of IDCfor identifying this decision
for us during last week's legalweek.
(01:34):
Now this decision today is fromUnited States Magistrate Judge
Scott Hardy who, by the way, hasthe same name as my fabulous
brother who, by the way, has thesame name as my fabulous
brother.
And Judge Hardy obliteratescounsel here for their behavior
in conducting meet and confersessions with defense counsel
and then misrepresenting it tothe court by way of a
certificate attached to hismotion to compel.
(01:57):
Let's dive in Now.
The plaintiff here brought acomplaint for pregnancy-based
discrimination and harassment,culminating in her termination.
According to the court, theparties have disagreed on how to
handle the discovery of ESIthroughout the matter.
We are before the court here ona motion to compel that was
filed by the plaintiff and byits counsel, joshua Ward.
(02:19):
In what is never a good signfor the moving party on a motion
to compel, the court began itsruling with an in-depth
discussion of the various rulesthat require the parties to meet
and confer prior to filing amotion.
Starting with Rule 26'srequirements of relevance and
proportionality, the court thenmoved to Rule 401 on relevance,
(02:43):
and then to Rule 37 governingdisputes.
The court then circled back toRule 26's limitations on
accessibility and duplicativediscovery before diving into the
requirement that the partiesmeet and confer in planning for
discovery.
As part of that specificdiscussion, the court noted that
(03:26):
during the meet and confer theparties quote must discuss faith
to agree on the proposeddiscovery plan and for
submitting to the court awritten report outlining the
plan.
That is all in accordance withFederal Rule of Civil Procedure
26F2.
The discovery plan, accordingto the court here, must state
the party's views and proposalson several topics delineated in
(03:47):
Rule 26F, including issues aboutdisclosure, discovery or
preservation of electronicallystored information, including
the form or forms in which itmust be produced.
The court also notes that therules empower the court to order
the parties to meet and conferin person, which needs to be
(04:07):
used much more often, in myopinion.
The court then notes that Rule37F allows the court to require
a party or its attorney to paythe other party's reasonable
expenses if the party or theattorney fails to participate in
good faith in developing andsubmitting a proposed discovery
plan under Rule 26.
(04:29):
Now, if that doesn't set astage for what's to come, I
don't know what does?
The court then went on toexplain how those requirements
of the federal rules arefurthered by local rules in the
United States District Court forthe Western District of
Pennsylvania, where this matteris pending.
Local Rule 2.6 from the WesternDistrict imposes a duty to meet
(04:52):
and confer both at the Rule 26Conference and following
requests for ESI.
Included in that requirement iscounsel's obligation to confer
with their client and quote,investigate their client's ESI
systems to understand how suchESI is stored, how it can be or
(05:12):
how it has been or can bepreserved, accessed, retrieved
and produced and any otherissues to be discussed at the
Rule 26F Conference.
The court notes that theattorneys must also identify a
person or persons with knowledgeabout their client's ESI, with
the ability to facilitate,through counsel, preservation
(05:33):
and discovery of ESI.
Close quote In addition tothose local court rules,
magistrate Judge Hardy pointedto the presiding judicial
officer's published practicesand procedures regarding the
parties to jointly contactchambers to schedule an informal
status conference for discoverydisputes.
The court then stated that nodiscovery motions are to be
(05:57):
filed until after the conference, except in the cases of
emergency as certified bycounsel.
Cases of emergency as certifiedby counsel.
Counsel is also required underthe presiding judicial officer's
practices and procedures tofile a certification quote that
the movement has discussed thematter with all other parties
and to expressly indicatewhether the opposing party
(06:19):
consents to or opposes themotion and whether such party
intends to file a response.
Close quote Now.
Having laid out all of theapplicable rules for counsel to
follow, the court then turned tothe facts of this case and
plaintiff's compliance, or Ishould say lack of compliance,
with them.
As I mentioned at the outset,the parties could not agree on
(06:41):
the scope or methodology fore-discovery in this case.
On April 3rd 2024, counsel forplaintiff served 25 separate
requests for production titledrequest for ESI search.
Now, that's a new title for meand, interestingly, not what
rule 34 contemplates, but Idigress.
In conjunction with those 25RFPs, counsel served defendant
(07:06):
with the Ward Firm ESI plantitled JP Ward and Associates
LLC.
Mandatory Rule 26F2,3 ESIDiscovery Plan for Use in
Employment Law Cases.
That plan was a 30-pagedocument that allegedly outlined
(07:26):
his law firm's standardprocedures for the Rule 26F
conference and subsequentproceedings.
Now, the court absolutely lovedthe use of the word mandatory
in the Ward Firm ESI plan,finding that it reinforced
attorney Ward's intent to imposeextensive ESI protocol
(07:47):
requirements on opposing counselin employment cases and that it
far exceeded the scope anddepth required by the district
court's checklist for meet andconfer, as well as its
guidelines.
The court also found that, inthe court's estimation, the ward
firm ESI plan frames certainconferral elements in an
(08:07):
argumentative and non-negotiablemanner, suggesting an
unwillingness to modify itduring the required conferral
process.
I have to wonder whether, infact, this document was meant to
be shared with opposing counseland with the court.
Probably not.
The firm ESI plan required thatdefendants not be permitted to
(08:28):
conduct their own collection,but instead be required to hire
a third party vendor to do it.
If you're raising your eyebrows, so am I, so am I.
That fact, combined with thesheer breadth of the requests
and the inclusion of terms thatwere not related to plaintiff's
claims and plaintiff's counsel'sadamance on how quickly they
should be complied with, allleft the court with a less than
(08:50):
positive view of counsel'sactions.
All of those issues werediscussed at a case management
conference at which the courtexpressed its disapproval of
plaintiff's counsel's tacticsand directed counsel to confirm
meaningfully on the issues byissuing an order.
The parties were not able toresolve the issues under that
(09:10):
order and months later submitteda joint letter to the court,
after which the court grantedattorney ward leave to file this
motion to compel.
That order granting the leaveto file was also accompanied by
a certification of was requiredattorney ward to also accompany
his motion with a certificationof conferral and to include the
(09:34):
specific factual basis for eachclaim, each discovery issue,
supported by affidavits ordeclarations.
Attorney Ward then filed themotion to compel, and that's
what the ruling is on here Now.
As you may have guessed by now,counsel's motion and supporting
materials fell far short ofwhat the court ordered.
The motion did not includesupport for factual assertions
(09:58):
or specify each discovery issuethat was the subject of the
motion, both of which the courthad ordered.
The court first objected to theoverly broad requests and scope
of custodians asked for byplaintiffs and noted that, while
defense counsel had attemptedto confer with Ward, ward either
ignored their overtures orimposed quote egregious barriers
(10:19):
to doing so.
According to the court, wardfailed to explain the relevance
for each of his proposedcustodians and failed to meet
his burden.
As such, the court denied themotion to compel.
The court also rejected Ward'sinsistence that defendants had
run hit reports on all of hissearch terms before determining
whether those search terms wererelevant.
(10:39):
The court noted that quote.
Attorney Ward has chosen toignore the court's observations
in this regard and persists inhis insistence that defendants
expend the time, effort andresources to search the
computers and phones of a wideswath of custodians relevant or
not for a wide range of searchterms relevant or not, and for
(11:03):
an overly broad time periodrelevant or not relying instead
on the apparent authority of hisown ward firm, esi plan.
Close quote.
In essence, and I reallyencourage you to read this
opinion, the court found thatcounsel had failed to identify
an appropriate time period and ascope of discovery that fit
(11:25):
within the allegations of thecomplaint.
Plaintiff's counsel had alsodefied the court's order
regarding the scope of thematter.
As a result, the court foundthat Ward's motion did not
satisfy that burden under Rule37, and, in denying the motion,
issued this quote.
The court is also of the viewthat Attorney Ward's
self-proclaimed mandatoryapproach to ESI discovery in
(11:47):
employment cases not onlycontravenes several provisions
of the federal rules of civilprocedure and this district
court's local rules, butAttorney Wardards unilateral
imposition of such ESI protocolsin all such cases also defies
the requirement that evenrelevant discovery must be
(12:08):
proportional to the needs of thecase, considering the
importance of the issues atstake in the action, the amount
in controversy, the party'srelative access to relevant
information, the party'sresources, the importance of the
discovery in resolving theissues and whether the burden or
expense of the proposeddiscovery outweighs its likely
(12:28):
benefit.
Citing federal rule of civilprocedure 26B1, it is evident
that in this case, attorney Wardhas ignored his duty to refrain
from discovery efforts that areunreasonable or unduly
burdensome or expensive in thecontext of those proportionality
factors.
Close quote.
(12:50):
The court then turned tocounsel's behavior, and that's
never a good sign.
The court took significantissue with Ward's behavior,
including insisting on mandatoryprotocols, making
disproportional discoveryrequests and then insisting that
any objection proposed bydefense counsel was a failure to
confer and subsequentlyrequiring that defense counsel
(13:14):
hire an outside vendor toconduct collections.
Now I know I've given you a lotof quotes, but this one from
Magistrate Judge Hardy kind ofsays it all, and I want you to
pay attention to this, becausewe've gotten away from the
cooperation in e-discovery thatis required to make it cost
effective and meet everyone'sneeds.
So pay attention to this quotethe conferral obligation is not
(13:37):
a bargaining chip to be offeredin exchange for a concession on
a disputed discovery process orrequested item.
Conferral is expected for alldiscovery planning and dispute
resolution and is a preconditionto seeking court intervention.
A party might also not imposeunreasonable conditions or
(13:58):
barriers on their willingness tomeet and confer.
Here defense counsel contendsthat attorney Ward insisted that
he would only meet in person toconfer if defense counsel
acquiesced to his demand thatsuch a meeting be recorded.
Such obdurate behavior in thiscase lacks justification, defies
(14:18):
the bounds of expectedprofessional behavior and was
seemingly deployed to harassdefense counsel and thwart any
meaningful and constructiveattempts at resolving the
party's disputes.
Close quote as a result ofWard's behavior, defense counsel
refused to meet in person underthe proposed conditions and
continued conferral efforts inwriting.
(14:39):
Under the proposed conditionsand continued conferral efforts
in writing.
Despite all of this, wardaffixed a certificate of meet
and confer to his motion, ascompelled by Rule 37A, and the
court found that Attorney Ward'sconduct did not satisfy his
obligation to confer in goodfaith and ordered Ward to show
cause why he and his law firmshould not be sanctioned for one
(14:59):
failing to participate in goodfaith in developing and
submitting a proposed discoveryplan as required by Rule 26F and
all related court rules, and tomisrepresenting to the court
that he has satisfied hisconferral obligations in good
faith before filing the motionto compel as required by Rule 37
(15:20):
.
All right, with all of that,what are our takeaways from
today's decision?
I love this decision becauseMagistrate Judge Hardy is
holding plaintiff's counsel tothe standard of cooperation that
should be required of everyparty in order to facilitate
discovery.
There's a lot of debate aboutwhether or not judges have the
(15:41):
time and bandwidth at thefederal and, in some cases, the
state court levels to be able tomanage counsel in terms of
cooperation and proportionalityin discovery issues.
It's a problem, and what Iwould suggest is that more
courts, like Judge Hardy doeshere, hold these parties to a
standard so that they know,coming into his court, that he
(16:03):
will hold them to therequirements of cooperation and
proportionality in the federalrules of civil procedure.
Now, there's no question herethat the discovery of ESI is
complex and it requires newprocesses and procedures than
discovery in paper did before.
Looking back, however, becauseI started practicing when we
still had paper, I'm not surethat we couldn't have used more
(16:25):
of these rules of paper, butthat's another topic altogether.
E-discovery requirescooperation, and the meet and
confer process is where thatcooperation takes place.
We have to have it Now.
I do want to give kudos to theplaintiff's law firm for
actually having guidance here inits plan on how to engage in
(16:46):
discovery and the best way toget discovery for their clients
in the type of law that theypractice.
I preach that every week.
You need to know what yourdiscovery obligations are for
the type of law that youpractice and the clients that
you have.
You don't need to be all seeingall of the time, stay up to
date on what's happening,understand what the issues are
(17:08):
and then learn them as you needto for your matters, but how you
lay out that information in aguide is crucial.
I'm going to guess that thefirm here, as I mentioned
earlier, never anticipated thatthe guide would be sent to
opposing counsel or that itwould end up in court.
So the takeaway really is thisGive your lawyers guidance on
(17:30):
how to handle e-discovery, butmake sure you train them
effectively on how to use thatguidance.
It doesn't look like thathappened here, and the language
and confrontational nature ofthe guidance from the firm did
not play well with the court.
It is no secret that defensecounsel with more resources
(17:50):
regularly try to run overplaintiff's counsel in discovery
.
But there is a middle ground towhat occurred here.
You can't fake knowing how todiscuss e-discovery you just
can't.
And when you try, because youhaven't taken the time to learn
what you were doing, you mayjust end up having to show the
court why you shouldn't besanctioned.
(18:11):
Misrepresenting anything to acourt is the quickest way to
undermine your client's case.
Judges are humans and you needthe judge to trust your word can
be relied on.
We all know that once bitten,twice shy, and that applies in
court as well.
The adversarial nature oflitigation needs to be tamped
down to properly deal withe-discovery and to feel
(18:35):
confident, stepping away fromthat adversarial position.
You need to feel confident inhow you deal with ESI.
Blindly following a guide or achecklist from a court or a form
someone gives you is not thesame and it will cause you to
miss positions for your clientor end up like counsel did here.
(18:55):
Finally, know the rules of thecourt you are in.
The Western District ofPennsylvania has local rules and
Magistrate Judge Hardy pointedto the presiding office the
presiding judge's chief casemanagement order.
When you have a case before ajudge, the judge's local rules
or whatever carries the day inyour case should be sitting on
(19:18):
your desk.
I used to keep mine in a filefolder by case sitting behind me
so I could reach over and justgrab them.
Bookmark them on your browser,if that's the way you prefer to
work.
You need to be re-reviewingthose rules regularly so you
have them in your head asstrategy.
Plaintiffs Council didn't dothat here.
(19:39):
Discovery is rule-driven and thecomplexity of e-discovery means
that you have to know andleverage the rules and the case
law in your strategy.
Learn from the mistakes thatplaintiffs counsel made here.
Don't just blindly follow aguide.
Know exactly what you need toknow for purposes of your case.
All right, that's our case ofthe week for this week.
(20:02):
We'll be moving to doing thecase of the week every other
week to be making room for othercontent on our newly branded
Meet and Confer podcast.
So be sure to tune in for ournext episode, whether you're
watching us via our blog,downloading it as a podcast on
your favorite podcast platformor on social media.
You can also find the backissues of Case of the Week on
(20:23):
the favorite podcast platformand be sure to subscribe.
Thanks so much.
Have a great week.
Thanks for joining me on theCase of the Week podcast Tune in
next episode as I discuss a newdecision in e-discovery case
law and identify the issues youneed to be paying attention to
and how they can help you dobetter discovery for your
clients and leverage the powerof ESI.
Be sure to subscribe and leavea review to help others discover
(20:45):
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
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