Upon learning that the District intended to produce email on a rolling basis even after trial had concluded despite two prior court orders compelling production, the court held that the District had waived all objections, including privileges, and ordered production within one week of the close of trial. Defendants moved for reconsideration. Likening the proposed production to “a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes,” the court denied the motion.
On the first day of trial, when the plaintiff class had been waiting “more than six years” for resolution, plaintiffs’ counsel revealed that his office had received “thousands of e-mails just days before trial” and that the District had indicated its intention to continue producing throughout and even following trial. When asked to explain, defense counsel indicated that a “supplemental search” had unearthed “tens of thousands of e-mails that had to be reviewed for relevance and privilege” and that she had not informed the court because the District “did not know it was going to fail to complete the review process.” She further indicated that the District was “understaffed” that “discovery was voluminous” and that “there simply were not enough bodies to process it all before trial.” The court took issue, particularly where many of the emails were more than two years old, and ordered production of all emails within one week of the close of trial. In doing so, the court reasoned that the deadline “would make any motion by plaintiffs to reopen the trial record to include newly introduced evidence more timely.” The court also held that any objections, including privileges, had been waived, reasoning that “litigating privileges and objections post-trial would … unreasonably delay any possible efforts by plaintiffs to reopen the trial record.” Defendants moved for reconsideration.
In its discussion of defendants’ motion, the court revealed that more than merely being very late, the District’s production was in violation of two court orders and, “most appalling,” was in violation of the Rule 26(e) duty to supplement. The discussion further revealed the court’s objection to the District’s “‘rolling production’ scheme” which one of the previous orders sought to end.
Having identified the “bare discovery violations,” the court went on to identify its other reasons for its order. First, the court reasoned, “the District ha[d] no excuse for its behavior in this case:”
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Source: ediscoverylaw.com
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