Transcript Metropolitan Opera Association, Inc. v. Local 100, Hotel

Metropolitan Opera Association, Inc. v.
Local 100, Hotel Employees and
Restaurant Employees International
Union
212 F.R.D. 178
S.D.N.Y. 2003
Parties

Plaintiffs
–

Defendants
–

Metropolitan Opera Association (The Met)
Local 100, Hotel Employees and Restaurant
Employees International Union (The Union)
Action
–
The Union improperly involving the Met in a labor
dispute
Discovery Under Lynett

May 2, 2000 – The Met serves First Document
Request with the Complaint
–

Joseph Lynett gives Brooks Bitterman and William Granfield
a copy of the Complaint and First Document Request
May 23, 2000 – Judge Preska holds teleconference
with counsel and directed the parties to produce
documents to each other that day
–
–
Union produces and gives the Met 500-600 pages with
virtually no internal Union documents
Union did not object to the document request or provide a
written Rule 34 Response
Discovery Under Lynett

Deborah Lans tells the Court about her
concern of the completeness of the
document production made by the Union
–

No letters or communications sent out by the
Union subsequent to May 1 were produced
Lynett told the Court that he believed a
search had been made, all letters produced,
and the Union’s records were not kept in
“that great of order”
Discovery Under Lynett


March 22, 2002 – Lynett deposed about meeting
with Bitterman, Granfield, and Diaz in May 2000
about document production
2 days later Lans raises the Union’s lack of
production again and Lynett tells the judge that the
Union conducted a thorough search, produced all
the documents that are responsive to the request
and that only privileged documents were not handed
over
–
Lie 1 – A thorough search was never done and there was
no basis for Lynett’s false representation in open court
Discovery Under Anderson


August 2000 – Met sends notice for deposition of Bitterman and
attaches another document request solely to Bitterman
Anderson replaces Lynett and tells Bitterman to retain all
related documents and forward responsive documents to his
associate in D.C.
–
–

Anderson never visited the Union’s office and only talked on the
phone to Bitterman
Bitterman’s search found to be incomplete
August 25, 2000 – The Union produces documents and a
privilege log and claim these to be all the responsive nonprivileged documents when coupled with the May production
–
–
Proves Lynett’s prior representation as false
Lie 2 – this statement is proven to be false and without basis also
Discovery Under Anderson

February 2, 2001 – Vincent Pentima sends Anderson
a letter
–


Conduct thorough search and provide full production of
documents and written response to Met’s requests
February 6 – Anderson responds by letter that the
Union will produce all new documents since
production in August
February 22 – Anderson produces more documents
to the Met and represents that this was full
production and documents were made available at
the Herrick Feinstein firm for inspection
–
Lie 3 – Representation was false and without basis
Met’s 2ND Document Request

May 25, 2001 – Met serves a 2nd Document request
that encompasses everything in the first but in a
more specific manner
–

Anderson instructs the Union to search files for any
Met related notes and to create a log that the Union
mail list received these letters
–

Stillman writes to Anderson about the Met being troubled by
the Union’s production
No follow up done
May 30, 2001 – Union makes a supplemental
production of documents which consists of repeated
letters sent out in April and May 2001
Met’s 2nd Document Request




June 28, 2001 – Stillman writes another letter to Anderson
stating that if Met did not receive assurances that production
deficiencies would be corrected by July 10 the Met would seek
sanctions with the court
July 10, 2001 – Anderson sends the Union’s responses and
objections to Met’s document request
July 12, 2001 – Met counsel inspects the Union documents at
Herrick Feinstein and find documents that were clearly
responsive to the first document request being produced
July 17 – both sides meet to discuss this situation but Anderson
states that the Union have obtained new attorneys and he
couldn’t speak to the Met about document production
Electronic Documents

July 18, 2001 – Judge orders Union’s counsel to
explain and inform the Union that all documents
relevant to the Met’s requests be preserved
–
–


The judge expressly makes the order applicable to all
information created and shared via computers
Anderson finds out that emails were stored only for 30 days
and asks that all staff start saving emails and printing hard
copies of them
July 26, 2001 – Lie 4 another Anderson false
representation
July – September 2001 – the Union produces more
documents that should have been produced earlier
Discovery Under Moss and Yen


October 2, 2001 – Met sends 3rd Document Request
for the employee benefits that the Union provides it’s
employees
October 26 – Moss sends a signed response that
Union claims there are no responsive Documents
–

Lie 5 – No basis for this untrue response
Yen’s declaration claims that these documents don’t
exist and that she interviewed each Union employee,
all of which said they have not seen such documents
nor are they maintained in their files
–
Lie 6 – She did not interview every employee and made
only a cursory search of the files
Met’s Claims

The Met moves for judgment, attorneys’ fees
and relief under Rules 26 and 37
Relevant Rules

Rule 26(g)
–
–
–

An affirmative duty placed on counsel for responsible
pretrial discovery
Explicitly imposes sanctions to safeguard against discovery
abuse
Comments state that “response” to a discovery request
includes responses to production requests
Rule 37
–
–
–
Allows for a party to move for an order to compel disclosure
or discovery
Address various discovery failures that are unjustified and
harmful
Court has the discretion to impose sanctions on the party
that fails their discovery and production responsibilities
Rule 26 Analysis


The Union’s counsel had an affirmative duty
to inquire about the basis of their responses
and to make sure that their representations
and responses were correct
Union’s counsel did not satisfy their duty
Union’s Rule 26 Failure

Counsel falsely represented repeatedly that all
responsive documents had been produced without
searching and checking whether it was true
–

Counsel doesn’t have to personally supervise every
step of the discovery process and may rely on the
client for some things, but the rule requires that
counsel’s response are made “upon reasonable
inquiry under the circumstances”
–

This continuing behavior is gross negligence to the point of
intentional misconduct
Union’s counsel failed to comply with this
Judge considered their conduct to be aggressively
willful and not merely negligent
Rule 37 Analysis


The trial court has the discretion to impose sanctions
Relevant considerations that a court looks to are
–
–
–
–
–
–
–
Willfulness or bad faith
History of noncompliance
Effectiveness of lesser sanctions
If the noncompliant party had been warned about the
possibility of sanctions
The client’s complicity
Prejudice to the moving party
Court’s need to deter discovery abuse
Union’s Rule 37 Failure

Willfulness and bad faith
–
–
–

History of noncompliance
–

The scarce inquires and production by Union was so deficient in
reasonable basis as to rise to bad faith
Union’s counsel failed to comply with several court orders
Individual defendants and Union counsel made false statements
about material facts
Union failed to comply with their discovery duties from the
beginning and continued to do so throughout the action
Client’s complicity
–
Granfield testified falsely; Bitterman omitted material facts and
made no effort to collect responsive documents; the Union
dismantled their computers when Met counsel suggested a
forensic computer expert to retrieve deleted materials
More Rule 37 Failures

Prejudice
–
–

Effectiveness of lesser sanctions
–
–

The Met does not have to prove prejudice by the Union’s actions
for Rule 37 sanctions but there was prejudice apparent
Critical documents were destroyed, documents were produced late
and in a disorganized manner, documents were not produced as
required by Rule 34
The judge did not believe that given all of the Union’s actions and
inactions, lesser sanctions such as adverse inference would have
been effective
It would not deter the Union and their counsel from engaging in
such behavior once again
Court’s inherent power
–
The court has the inherent power to sanction parties that act in
bad faith and dishonestly
Outcome


Met’s motions for liability judgment against
Union granted
Attorney’s fees sanctions granted
Questions


Is it fair to hold the attorney responsible as well as
the client when there is noncompliance, when the
client is the party with more knowledge about the
documents and procedures of their firm?
Under Rule 37 a Court has the discretionary power
to impose sanctions on a noncompliant party –
should there be a test established to determine the
level of severity of imposable sanctions with regards
to discovery rather than have each judge
determining that on their own?