Litigation partners Chris Boehning and Dan Toal’s latest Federal E-Discovery column, “Court Applies Rule 37(a)(5)(A) Fee-Shifting for Discovery Deficiencies,” appeared in the February 2 issue of the New York Law Journal. The authors discuss a recent decision from the Northern District of Illinois illustrating that courts may probe deeply into a discovery process and order corrective measures if a party’s discovery production diverges sharply from expectations or the party’s representations.
In BCBSM, Inc. v. Walgreen Co., the court confronted extensive deficiencies in the plaintiffs’ discovery efforts, including regarding the plaintiffs’ responsiveness criteria and the “huge discrepancy” between the number of responsive documents initially anticipated and actually produced, and granted fee-shifting sanctions under Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure. The decision underscores that, while litigants have broad flexibility to create reasonable discovery search and review procedures, that flexibility comes with an expectation that the chosen processes will be executed with sufficient consistency, skill and rigor; and that, even absent proof of bad faith, negligent or reckless discovery failures can still result in prolonged remediation, extensive court oversight and substantial financial liability for fee awards.
Deputy chair and counsel, e-discovery, Ross Gotler and e-discovery attorney Lidia Kekis assisted in the preparation of this article.
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