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Thinking About Asking for More Discovery, Even After Disputes? Don’t Get Shut Down; Think Narrowly.

Originally published on ELL Blog.

Schawn-Paul Rotella

Herron v. Fannie Mae, 1:10-cv-00943-RMC, (D.D.C. Feb. 2, 2015).

Judges are human. When requesting discovery amid multiple discovery disputes, one’s requests should be narrow and specific. Otherwise, one risks the presiding judge’s cutting off all future discovery due to frustration and patience, or lack thereof.

Many of you have been there. After months of discovery and the unavoidable disputes that accompany the process, you still need more. Do not make the same mistake that this lawyer made.

In Herron v. Fannie Mae, the plaintiff sued the defendant Fannie Mae for alleged illegal termination. The plaintiff asserted that she was fired because she complained about the management and decisions, among other things. Throughout the proceedings of the case, there was a record filled with discovery disputes and discovery deadline extensions. The discovery process was dragging along until United States District Judge Rosemary M. Collyer put an end to all discovery in a single order titled, “ORDER ON ONE MILLIONTH DISCOVERY DISPUTE.” While there was not actually a million discovery disputes, the judge had become so fed up with the parties and their arguments that she was forced to take action. “Much as the Court admires the advocacy of counsel, it is exhausted with these disputes. Contrary to its usual practice, the Court will rule immediately.”

The straw that broke the proverbial camel’s back was two separate requests from the plaintiff. Instead of seeking specific and narrow discovery, the plaintiff asked for “highly overbroad” depositions and document requests. For example, the plaintiff asked for the entirety of “confidential internal presentations and deliberations on executive bonuses by the Board of Directors for all of Fannie Mae’s executive staff for two years.” This request, remember, is coming from a plaintiff that is seeking an illegal termination claim. Judge Collyer stated that “these topics could have, and should have, been laser focused. They were not and will not be enforced.” Due to the overbroad nature of one parties’ requests, all future discovery for both parties was terminated.

The major practice lesson that comes from this is two-fold. First, when seeking additional discovery after months of disputes, stay narrow and focused. Taking the extra time to efficiently state exactly what you are looking for could keep discovery on track (think pleading specificity standards). Plus, the judge will appreciate the candor and targeted nature of the request. Second, make sure that the discovery you are requesting is on point with what your case issue will allow. As seen in Herron, reaching for too much discovery that may be beyond your cause of action is a sure fire way to anger a judge.

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