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

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

2. “the Met” – Since 1932 the Metropolitan Opera Association, Inc. has run New York City's internationally acclaimed Metropolitan Opera. The Met stages 200 performances during the course of a season that runs 30 to 32 weeks. “Local 100” or “the Union” – Labor union supplies workers for the Met’s food service provider Restaurant Associates Corporation, “RA”. Parties

3. Met commenced suit May 2000 asserting Local 100 improperly involved them in a labor dispute between RA (Met’s food services co) and Local 100. During discovery Met’s counsel issued 4 document request – each not fully answered Local 100 and counsel – disregarded Court orders and opponent's letters and continuous request for production. Local 100 counsel turned over the discovery process to a non-lawyer Brook Bitterman (Local’s research director) Local’s counsel failed to ask key witnesses for docs until night before their depo was scheduled Local’s counsel knew no retention policy existed and failed to implement one or issue a litigation hold Bitterman failed to advise all employees of the necessary doc production AND never followed up w the employees she did advise No attorney inquired as to whether Bitterman did a search or what steps they took to search Local’s counsel lied to court about a witness’ vacation to postpone deposition CONTINUOUSLY Lied to the court through assertions that all docs had been produced Purposefully dismantled computers after notice of intent to retrieved deleted information Union officer lied during depo as to whether reporst were filed and docs never produced even after lie was discovered FACTS(Glimpse)

4. Ediscovery Legal Framework • Rule 26(g) – imposes on counsel an affirmative duty to engage in pretrial discovery responsibly and “is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.” Also the rule reads an attorney need “stop and think about the legitimacy of a discovery request, response, or objection.” • Rule 37(b)(2)(A)(vi) If a party or a party's officer, director, or managing agent — or a witness designated under Rule 30(b)(6) or 31(a)(4) — fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders including rendering a default judgment against the disobedient party; • 28 U.S.C. s 1927: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. • Judges’ inherent powers to impose sanctions

5. Issues • Should sanctions be imposed under Rule 26, considering intent and reasonableness of counsel’s behavior during discovery? • Should sanctions be applied via a Rule 37 analysis, was there (a) willfulness or bad faith, (b) history of non-compliance, (c) client’s complicity, (d) prejudice, and (e) lesser sanction effectiveness considered? • Applicability of 28 U.S.C. s 1927? • Court’s inherent power to impose sanctions?

6. Rule 26 – requires counsel to “stop and think about the legitimacy of responses.” Here counsel repeatedly represented that all responsive documents had been produced w/o any real reflection for their discovery obligation. They were not reasonable in their behavior so much so that they were aggressively willful in their misrepresentations. 28 U.S.C. s 1927 – counsel’s failure to comply w dis and their unreasonable obstruction and delay of dis to be so completely w/o merit as to req conclusion of purposeful delay ~ sanctions req. Rule 37 Willful (previously determined) History of non-compliance ~ issue arose from the outset of the litigation Client's complicity ~ Granfield (Pres.) falsely testified regarding preparation of documents. Prejudice ~ Court found not req, although present. Reflected through destruction of docs, inability to strategize, unable to depose key witnesses. Lesser sanctions ~ Court numerous times gave D opp to comply without progress Ediscovery Anaylsis Court’s inherent power – court has necessity of sanction to conduct judicial business of those who deviate from good faith, exercising that authority assures continued productive legal system

7. Conclusion/Outcome • Plaintiff’s motion for judgment as to liability against defendants and for additional sanctions in the form of attorney’s fees necessitated by the discovery abuse by defendants and their counsel is granted against defendants and their counsel.

8. Questions to consider • What factors should be considered in determining whether default judgment or a dismissal is appropriate? • Why would discovery issues create a basis for revoking/barring one’s ability to settle their case on the merits?