It is no secret that judges and magistrates are losing patience with lawyers and litigants who abuse the e-discovery process. The latest example of this came in an opinion handed down this week by Royce C. Lamberth, chief judge of the U.S. District Court for the District of Columbia. Lambasting a defendant for its “repeated, flagrant, and unrepentant failures” to produce thousands of responsive emails, Judge Lamberth ruled that it had waived all objections – including objections that the emails were protected by attorney-client privilege – and would be required to produce all the emails in short order.

What is remarkable about this case, DL v. District of Columbia, is that the full extent of the defendant’s failure to produce only came to light on the day trial was to begin, in a class action that had already dragged on for six years and in which the judge three years earlier had ordered the defendant to produce the emails. On the day trial was to begin, plaintiffs’ counsel informed the judge that the defendant had produced thousands of emails just the day before and that new productions continued to flood his office.

Indeed, he said that his office had received thousands of e-mails just days before trial and that the District had indicated that it was going to continue producing thousands of e-mails on a “rolling” basis even after the trial concluded. Such a “document dump” might be legitimately explained if these e-mails were new and thus couldn’t have been produced sooner. But plaintiffs’ counsel indicated that many were more than two years old.

For the defendant to produce documents after trial, the surprised judge said, would be like a comic telling his jokes after delivering the punch line or a plane deploying its landing gear after touchdown. In search of an explanation, the judge turned to counsel for the defendant and asked why these e-mails were just coming to light.

Defense counsel indicated that they were the result of a “supplemental search” that had yielded tens of thousands of e-mails that had to be reviewed for relevance and privilege. She also said that this process of new searches and review had been “ongoing for months.” The Court asked her why she failed to mention this at the pretrial conference. She responded that the District didn’t know it was going to fail to complete the review process before trial began and thus saw no need to inform the Court of the ongoing discovery.

The Court asked why the District chose to undertake this process in secret without informing it of what was happening. She responded that the District was understaffed, the discovery was voluminous, and there simply were not enough bodies to process it all before trial.

Upon hearing that, the exasperated judge issued his order directly from the bench. He ordered the defendant to produce all of its e-mails within one week of the close of trial and ruled that it had waived privilege and objections with regard to the emails yet to be produced. (The deadline of one week after trial was set to allow plaintiffs time to reopen the trial record in the event the emails produced new evidence.)

Defendant Had ‘Absolutely No Excuse’

The written opinion that Judge Lamberth issued this week came after the defendant filed a motion asking him to reconsider the order he issued from the bench. If counsel for the defendant thought the judge might have cooled down in the interim, she was wrong. The motion argued that the defendant should not be sanctioned because it made a good faith effort to produce the emails before trial. Here is what Judge Lamberth said about that:

Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court.  The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery—discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to  wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

As for the sanctions he imposed, Judge Lamberth explained that the defendant had “absolutely no excuse for its behavior in this case. It knew of its discovery obligations and it knew how to file a motion for extension of time.” At whatever point the defendant realized it would not be able to comply with the discovery order, it should have alerted the court and asked for more time, he said.

Regarding his order that the defendant had waived privilege in the yet-to-be produced emails, the judge said that this was not simply punitive. “Instead, the Court sought to specifically deter the District from misbehaving in this way in the future and to generally deter other parties from doing the same by putting them on notice of the fact that this Court takes the Federal Rules’ discovery framework seriously,” he explained.

The Catalyst Take: Watch Your Head

What are the lessons to be learned from this decision? Here are two fairly obvious ones:

1. If you’re in over your head, you need help to dig yourself out. The opinion makes clear that defendant’s counsel knew she did not have the staff to handle the volume of email that had to be reviewed. Not only did she know it, but she knew it years earlier. There is no indication that she sought help, either in the form of technology or consulting. Had she done so when she first realized there was a problem, the problem would never have snowballed into a crisis.

2. If you are unable to do something the law expects you to do, don’t hide your head in the sand and hope no one will notice. The judge made clear that if defendant’s counsel had only asked for more leeway, she would have received it. The defendant’s complaints that it was overwhelmed “fall on deaf ears,” the judge said, “because it failed to seek relief.”

I urge you to read the full decision and invite you to share your thoughts in the comments below.

[Hat tip to The BLT: The Blog of Legal Times, which first reported the ruling.]