Discovery matters are tricky.
Especially matters like, "I want those documents and they won't give them to me," or "I want to talk to that witness longer and they won't let me."
You see, judges deal with million- and billion-dollar matters, along with a back log of life-and-death (literally in criminal matters) cases, so when he or she has to take time out of doing important work to turn to a seemingly trivial discovery matter, sometimes the judge’s frustrations show.
Now, there are some important discovery matters that judges need to hear. And sometimes, it's the other side that is being impossible. But, it's a hard lesson for attorneys to learn that most discovery matters, no matter how important the attorneys think they are, sound like whining to judges.
Case in point, last August, I wrote an article about how the case of Shanus v. Robert Edwards Auctions and Lifson spilled from a New Jersey court into Santa Ana, California. The dispute was over whether third party, and PSA employee, Stephen Grad was required to give an additional seven hours of deposition testimony after already giving 14 hours.
Well, in a January 3 order, the court ordered an additional seven hours of deposition for Grad. The court's analysis on why is light. However, it should be noted that prior to filing the lawsuit, Grad, who just happens to be PSA's lead authenticator, inspected the sports memorabilia at issue. It was he who determined the items were allegedly not authentic, which, allegedly started the whole suit. He's a pretty important witness then, so the judge likely wanted both sides to get their full time with him so no one got an unfair advantage.
OK, so far it sounds boring, I know. But what's interesting about the order is the judge's frustration with both parties. First, the judge railed against the defense attorneys, unleashing a barrage of rhetorical questions. Don't try to understand what's going on,just feel the pain:
Moreover, it simply is inexplicable to the Court that defendants’ counsel did not realize the Court’s mistake. Why would Grad’s counsel have to meet and confer with plaintiff’s counsel prior to renoticing a motion to quash a subpoena issued by defendants’ counsel? Why would plaintiff’s counsel need to obtain advance leave of court, in accordance with Fed. R. Civ. P. 30(a)(2)(A)(ii), prior to renoticing the deposition for another session when plaintiff’s counsel had completed his examination and it was defendants’ counsel who were seeking leave to conduct further examination? Why, in the face of Grad’s counsel’s unwillingness to stipulate to further examination by defendants’ counsel, would plaintiff’s counsel need to obtain leave of court prior to renoticing the deposition to exceed the 1-day 7-hour durational limit of Fed. R. Civ. P. 30(d)(1)? Why would plaintiff’s counsel be well advised to withdraw the subpoena when there was no outstanding subpoena that had been issued by plaintiff’s counsel?
Since the context has been omitted this likely sounded like an adult talking to Charlie Brown, but can't you hear the volume increasing or feel the poke in the chest for emphasis after each question?
Poor defense counsel.
But they weren’t the only ones that got it. The judge then laid into Grad's counsel when it stated it did "not condone the conduct of Grad's counsel in not producing documents requested by defendants' counsel that he represented would be forwarded prior to the May 29, 2013 deposition session...."
And then the judge gave both sides a not-so-veiled suggestion about what they could do with any future issues:
For purposes of such documents subpoena, both counsel are advised that the Court will expect them to resolve the kind of objections that Grad previously interposed without the necessity of the Court’s intervention.
Legal translation: Work out your own whiny issues between yourselves.
Yikes! As an attorney, I've experienced a couple bloodbath opinions like this, so reading this order made me squirm. I could also emphasize with both sides' attorneys. The defense attorneys needed more deposition time to fully prepare their case. And PSA/Grad's attorneys thought that fourteen hours was already enough.
As a bystander, however, reading a court order like this (or seeing one live in person) is amusing. I once watched an attorney argue that a discovery matter was "very important" and "vital" because if certain documents were given to the other side, his client would go out of business.
The judge's response, "Every attorney who comes into my courtroom tells me every motion they file is ‘important’ and ‘vital.’ You know what? Most times, they’re not."
No wonder there are so many courtroom dramas on television!
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