212 F.R.D. 178 (S.D.N.Y. 2003)

1. Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees & Restaurant Employees International Union 212 F.R.D. 178 (S.D.N.Y. 2003)

2. Plaintiff: Metropolitan Opera Association “the Met” • Brought original claim against the Union for improperly involving them in a labor dispute they had with RA. • Restaurant Associate Corp. “RA” • The Met’s food services provider. • Defendant: Local 100 “the Union” • Bitterman: Research Director • William Granfield: Secreatry/Treasurer • Counsel: Herrick Feinstein, LLP Parties

3. Joseph Lynett, counsel for the Union • First Document Request—May 2, 2002 • “Yes, your Honor, we have produced all documents responsive to that request.” • No internal documents. • No letters of communication after May 1st . • Did not instruct all Union employees to retain documents. • Did not inform employees of what documents were responsive. • Did not follow up to ensure all responsive documents were produced. • Made false representations to the court. Facts

4. Michael Anderson, counsel for the Union • Duplicate Document Request—August 2000 • Documents after May 2000 not produced. • Documents were testified to in depositions, but not produced. • Anderson’s Production—February 22, 2001 • Stated it contained all non-privileged documents generated since May 2000. This was not true. • Second Document Request—May 25, 2001 • “Notes relating to the Met.” • No follow up to ensure compliance. • No new documents produced. • Meeting —July 17, 2001 • Conference—July 18, 2001 Facts

5. James Moss & Marianne Yen, counsel for the Union • Third Document Request—October 2, 2001 • “there are no responsive documents” • “personally questioned each employee” • Fourth Document Request—October 23, 2001 • Never responded to. Facts

6. Rule 26 • Rule 37 • 28 U.S.C. §1927 • Court’s inherent power Legal Framework

7. Rule 26(g): counsel must make a reasonable inquiry into the basis of their discovery responses. • Cousel’s conduct was not merely negligent but agressively willfull. • Rule 37: sanctions are appropriate here • Bad faith, non-compliance, utter failure, prejudice to the opposing party. • 28 U.S.C. §1927 • Conclusion that obstruction and delay was undertaken for some improper purpose. • Court’s Inherent Power Analysis

8. Lack of adequate document search. • No document retention policy. • No explanation of what was to be produced. • Failure to follow up with employees. • Replacement of computers Issues Regarding eDiscovery

9. Plaintiff’s motion for judgment as to liability against defendants was granted against the Union and their counsel. • Additional sanctions for attorney’s fees were necessitated by the discovery abuse. • Court noted there was no indication that lesser sanctions would bring about compliance. The Union’s destruction of documents made a lesser sanction impossible. Conclusion

10. The system prefers to resolve controversies on the merits. Do you believe this was the appropriate sanction in this case, or was another sanction or set of sanctions appropriate? • Judge Preska’s opinion noted the “hurly-burly of the discovery process” and “Rambo litigation tactics”. The Union also accused the Met of deficient discovery compliance. When does “hurly-burly” discovery become bad faith discovery? Questions