Law Firms

2 firms each sanctioned $500 after defendant complains of 'egregious discovery gamesmanship'

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A federal judge in Seattle has ordered the law firms of Baker Donelson and Corr Cronin to pay $500 each for trying to use an apparent misunderstanding as a litigation “weapon.”

In a Sept. 7 order, U.S. District Judge Thomas Zilly said the law firms had filed a frivolous motion for partial summary judgment that claimed their opponent, software maker Medstreaming, missed a discovery deadline by responding to a request for admissions by email.

Baker Donelson and Corr Cronin had sent defendant Medstreaming a request for admissions that its software performed improperly, then claimed the requests were automatically deemed admitted because the response was improperly served via email. The admissions entitled the plaintiffs to a ruling on their breach of contract claims, the law firms asserted.

The firms’ July 12 motion for partial summary judgment cited the Federal Rules of Civil Procedure allowing service by electronic means only is there is consent in writing. There was no such consent, the motion said.

The law firms represent companies that provide radiology services that claimed Medstreaming’s record and billing software didn’t perform as promised; Medstreaming says its software “was functional in all material respects.”

The law firms’ motion claimed Medstreaming’s email response was not only improper under the federal rules, it was also delivered a day after a June 11 deadline because it was delivered at 12 a.m. Pacific Time on June 12, which is 2 a.m. Central Time where the plaintiffs’ lawyers are located.

Medstreaming responded that the motion for partial summary judgment was “an instance of egregious discovery gamesmanship.” The company said it had routinely provided discovery responses by email, and its 12 a.m. response was at most a minute late. The company also said the plaintiffs had themselves served papers electronically.

On Aug. 16, Zilly denied the motion for partial summary judgment and issued an order to show cause why the law firms should not be sanctioned $5,000 each. Zilly reduced the sanction to $500 each in his Sept. 7 order and required the firms to pay the money to the Washington State Bar Foundation.

Zilly said the response had been received by the due date and the plaintiffs could not have reasonably asserted any prejudice from receiving the responses by email rather than another means of service.

According to Zilly, the plaintiffs’ lawyers had tried “to use as a weapon in this litigation whatever misunderstanding occurred regarding how discovery requests and/or responses would be exchanged.”

Zilly added a reminder to all parties and their counsel “that the court expects them to act reasonably and cooperatively in the discovery process and to comport themselves in a professional and courteous manner.”

Lawyers from Baker Donelson and Corr Cronin didn’t immediately respond to a request for comment.

Hat tip to Law360.

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