Doug Austin, eDiscovery Today: Deposition in Bad Faith Gets Thrown Out Over Failure to Meet and Confer

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Extract from Doug Austin’s article “Deposition in Bad Faith Gets Thrown Out Over Failure to Meet and Confer”

In Boulder Falcon, LLC v. Brown, No. 2:22-cv-00042-JNP-JCB (D. Utah March 28, 2023), Utah Magistrate Judge Jared C. Bennett denied defendants’ motion for sanctions and granted plaintiff’s motion for a protective order because defendants’ counsel conducted the plaintiff’s president deposition in bad faith and failed to meet and confer over confusion over the plaintiff’s load file format production.

Case Discussion

As part of the Introduction to his ruling, Judge Bennett referenced a particular book which presents “a model that accurately describes how individuals, including civil litigators, go from observing a phenomenon to reacting to it”, as follows:

Judge Bennett stated: “The authors discuss how the second step in the path to action is often where things go awry because when those embroiled in a pre-existing conflict see their ‘enemy’ do something, the other side generally ascribes sinister motives to those actions even though those same actions may have several innocent explanations…High on negative emotion, the observer then acts to right the perceived wrong that the enemy has perpetrated.”

The plaintiff responded to Defendants’ Rule 34 requests by producing approximately 7,000 pages of materials in an electronic, load-file format so that they could be uploaded into discovery review software. Although the plaintiff produced load files, it did not inform Defendants of that fact, and Defendants did not upload the load files into discovery review software. Consequently, to Defendants’ counsel, Louis R. Cohan, Boulder Falcon’s production appeared to be a randomized, unorganized, and duplicative mess. The links in emails to attachments did not work, and email attachments did not necessarily follow their parent email in the production.

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