2008-11-14 eDiscovery Sanctions Proceeding Permit Deposition of Prior Counsel

In the November 3 decision in Bray & Gillespie Management LLC v. Lexington Ins. Co., 2008 WL 4826115 (M.D.Fla. 2008). Magistrate Judge Spaulding set a full day for what promises to be a spirited reopening of an evidentiary hearing involving a sanctions motion for discovery violations.

The ground rules set for the hearing provide some context as to what might be expected:

"The Federal Rules of Evidence will apply at the hearing" (in a footnote to this sentence, the Court added: "The Court will not accept testimony from counsel of record in a narrative fashion. Therefore, if an attorney for a party will testify, another attorney must be present to conduct the direct examination.")

"2. Conflicts, if any, in the information before the Court regarding when Reed Smith and lawyers affiliated with it has access to the Introspect database containing information sought in discovery in the present case;

3. Responsibility of counsel of record for any sanctionable conduct related to the present motions. See, e.g., Stuart I. Levin & Assocs., P.A. v. Rogers, 156 F.3d 1135, 1141 (11th Cir.1998); see also Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009-10 (8th Cir.1993); Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614 (D.Colo.2007)."

The preceeding paragraph also merited its own footnote:

"At the close of the previous evidentiary hearing, counsel for Plaintiffs submitted that he should have been permitted to present evidence from previous counsel of record regarding good faith conferences among counsel, the meaning of terms in discovery responses, and other information. If counsel for Plaintiffs wish to present such evidence, or other information such as retainer agreements or time records showing the division of work between and among counsel, they may promptly seek permission to depose prior counsel, if necessary, to obtain the information and present it to the Court."

That attorneys engaging in eDiscovery may be expected to testify about the eDiscovery process (and not the merits) should come as no surprise.