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

2. Parties Plaintiffs – Metropolitan Opera Association (The Met) Defendants – Local 100, Hotel Employees and Restaurant Employees International Union (The Union) Action – The Union improperly involving the Met in a labor dispute

3. 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

4. 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”

5. 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

6. 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 non- privileged 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

7. 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

8. Met’s 2 ND Document Request May 25, 2001 – Met serves a 2 nd Document request that encompasses everything in the first but in a more specific manner – Stillman writes to Anderson about the Met being troubled by the Union’s production 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 – 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

9. Met’s 2 nd 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

10. 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

11. Discovery Under Moss and Yen October 2, 2001 – Met sends 3 rd 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

12. Met’s Claims The Met moves for judgment, attorneys’ fees and relief under Rules 26 and 37

13. 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

14. 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

15. Union’s Rule 26 Failure Counsel falsely represented repeatedly that all responsive documents had been produced without searching and checking whether it was true – This continuing behavior is gross negligence to the point of intentional misconduct 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” – Union’s counsel failed to comply with this Judge considered their conduct to be aggressively willful and not merely negligent

16. 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

17. Union’s Rule 37 Failure Willfulness and bad faith – 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 History of noncompliance – 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

18. More Rule 37 Failures Prejudice – 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 Effectiveness of lesser sanctions – 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

19. Outcome Met’s motions for liability judgment against Union granted Attorney’s fees sanctions granted

20. 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?