Boardley et al v. Household Finance Corporation III et al

Filing 45

MEMORANDUM OPINION AND ORDER granting in part and denying in part 42 MOTION for Leave to File Third Amended Complaint ; scheduling a Rule 16 Conference for Tuesday June 23. 2015 at 1:00 p.m. Signed by Judge Paul W. Grimm on 6/1/2015. (Attachments: # 1 Scheduling Order, # 2 Discovery Order)(aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
UNITED STATES DISTRICT JUDGE

6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone]
[phone] FAX

DISCOVERY ORDER
Fed. R. Civ. P. 26(b)(2)(C) and 26(g)(1)(B)(iii) require that discovery in civil cases be
proportional to what is at issue in the case, and require the Court, upon motion or on its own, to
limit the frequency or extent of discovery otherwise allowed to ensure that discovery is
proportional. This Discovery Order is issued in furtherance of this obligation. Having reviewed
the pleadings and other relevant docket entries, the Court enters the following Discovery Order
that will govern discovery in this case, absent further order of the Court or stipulation by the
parties. This Discovery Order shall be read in conjunction with the Scheduling Order in this
case, which provides discovery deadlines, and will be implemented in compliance with the
Discovery Guidelines for the United States District Court for the District of Maryland (see
paragraph 3, below). With respect to the limitations imposed in paragraphs 2a, 2b, 5, 6 and 8,
counsel are encouraged to confer and propose to the Court for approval any modifications
that are agreeable to all counsel.
1. Disclosure of Damage Claims and Relief Sought. By the date set in the Scheduling Order,
any party asserting a claim against another party shall serve on that party and provide to the
Court the information required by Fed. R. Civ. P. 26(a)(1)(A)(iii) regarding calculation of
damages. The party also shall include a particularized statement regarding any non-monetary
relief sought. Unless otherwise required by the Scheduling Order, the disclosures required
by Fed. R. Civ. P. 26(a)(1)(A)(i), (ii), and (iv) need not be made.
2. Scope of Discovery – Proportionality. Pursuant to Fed. R. Civ. P. 26(b)(2)(C) and
26(g)(1)(B)(ii)–(iii), the discovery in this case shall be proportional to what is at issue in the
case. While the monetary recovery a party seeks is relevant to determining proportionality,
other factors also must be considered, including whether the litigation involves cases
implicating “public policy spheres, such as employment practices, free speech, and other
matters [that] may have importance far beyond the monetary amount involved.” Fed. R. Civ.
P. 26(b) advisory committee’s note to 1983 amendment. To achieve the goal of
proportionality, and pursuant to Fed. R. Civ. P. 26(b)(1), discovery will be conducted in
phases, as follows.
a. Phase 1 Discovery. The first phase of discovery should focus on the facts that are most
important to resolving the case, whether by trial, settlement or dispositive motion.
Accordingly, the parties’ Phase 1 Discovery may seek facts that are not privileged or
work product protected, and that are likely to be admissible under the Federal Rules of
Evidence and material to proof of claims and defenses raised in the pleadings. Phase 1
Discovery is intended to be narrower than the general scope of discovery stated in Rule
26(b)(1) (“discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense,” even if not admissible, if “reasonably calculated to lead to the
discovery of admissible evidence” (emphasis added)). Discovery sought during Phase 1

Discovery may not be withheld on the basis that the producing party contends that it is
not admissible under the Federal Rules of Evidence, if it otherwise is within the scope of
discovery permitted by Rule 26(b)(1), as modified by this Order. Rather, a party from
whom discovery is sought (“Producing Party”) by an adverse party (“Requesting Party”)
must produce requested Phase 1 Discovery subject to any evidentiary objections, which
must be stated with particularity.
b. Phase 2 Discovery. Unless the parties stipulate otherwise, the Court, upon a showing of
good cause, may permit discovery beyond that obtained under Phase 1 Discovery. In
Phase 2 Discovery, the parties may seek discovery of facts that are not privileged or work
product protected, are relevant to the claims and defenses pleaded or more generally to
the subject matter of the litigation, and are not necessarily admissible under the Federal
Rules of Evidence, but are likely to lead to the discovery of admissible evidence. A
showing of good cause must demonstrate that any additional discovery would be
proportional to the issues at stake in the litigation, taking into consideration the costs
already incurred during Phase 1 Discovery and the factors stated in Rule 26(b)(2)(C)(i)–
(iii). If the Court determines that additional discovery is appropriate, the Requesting
Party will be required to show cause why it should not be ordered to pay all or a part of
the cost of the additional discovery sought.
c.

Initial Discovery Protocols for Employment Cases. For cases involving claims of
employment discrimination, the parties are encouraged to follow the Initial Discovery
Protocols for Employment Cases Alleging Adverse Action, which may be found at:
http://www.fjc.gov/public/pdf.nsf/lookup/DiscEmpl.pdf/$file/DiscEmpl.pdf

3. Cooperation During Discovery. As required by Discovery Guideline 1 of the Discovery
Guidelines for the United States District Court for the District of Maryland, D. Md. Loc. R.
App.
A
(July
1,
2011),
http://www.mdd.uscourts.gov/localrules/LocalRulesOct2012Supplement.pdf, the parties and counsel are expected to work cooperatively during
all aspects of discovery to ensure that the costs of discovery are proportional to what is at
issue in the case, as more fully explained in Mancia v. Mayflower Textile Services Co., 253
F.R.D. 354, 357–58 (D. Md. 2009). The failure of a party or counsel to cooperate will be
relevant in resolving any discovery disputes, including whether the Court will permit
discovery beyond Phase 1 Discovery and, if so, who shall bear the cost of that discovery.
Whether a party or counsel has cooperated during discovery also will be relevant in
determining whether the Court should impose sanctions in resolving discovery motions.
4. Discovery Motions Prohibited Without Pre-Motion Conference with the Court.
a. No discovery-related motion may be filed unless the moving party attempted in good
faith, but without success, to resolve the dispute and has requested a pre-motion
conference with the Court to discuss the dispute and to attempt to resolve it informally.
If the Court does not grant the request for a conference, or if the conference fails to
resolve the dispute, then upon approval of the Court, a motion may be filed.
b. Unless otherwise permitted by the Court, discovery-related motions and responses thereto
will be filed in letter format and may not exceed five, single-spaced pages, in twelve2

point font. Replies will not be filed unless requested by the Court following review of
the motion and response.
5. Interrogatories. Absent order of the Court upon a showing of good cause or stipulation by
the parties, Rule 33 interrogatories shall be limited to fifteen (15) in number. Contention
interrogatories (in which a party demands to know its adversary’s position with respect to
claims or defenses asserted by an adversary) may be answered within fourteen (14) days of
the discovery cutoff as provided in the Scheduling Order. All other interrogatories will be
answered within thirty (30) days of service. Objections to interrogatories will be stated with
particularity. Boilerplate objections (e.g., objections without a particularized basis, such as
“overbroad, irrelevant, burdensome, not reasonably calculated to identify admissible
evidence”), as well as incomplete or evasive answers, will be treated as a failure to answer
pursuant to Fed. R. Civ. P. 37(a)(4). For that reason, boilerplate objections are prohibited.
6. Requests for Production of Documents.
a. Absent order of the Court upon a showing of good cause or stipulation by the parties,
Rule 34 requests for production shall be limited to fifteen (15) in number. A response to
these requests shall be served within thirty (30) days and any documents shall be
produced within thirty (30) days thereafter, absent Court order or stipulation by the
parties. Any objections to Rule 34 requests shall be stated with particularity. Boilerplate
objections (see ¶ 5 above) and evasive or incomplete answers will be deemed to be a
refusal to answer pursuant to Rule 37(a)(4).
b. Requests for production of electronically-stored information (ESI) shall be governed as
follows:
i. Absent an order of the Court upon a showing of good cause or stipulation by the
parties, a party from whom ESI has been requested shall not be required to search for
responsive ESI:
a. from more than ten (10) key custodians;
b. that was created more than five (5) years before the filing of the lawsuit;
c. from sources that are not reasonably accessible without undue burden or cost; or
d. for more than 160 hours, inclusive of time spent identifying potentially responsive
ESI, collecting that ESI, searching that ESI (whether using properly validated
keywords, Boolean searches, computer-assisted or other search methodologies),
and reviewing that ESI for responsiveness, confidentiality, and for privilege or
work product protection. The producing party must be able to demonstrate that
the search was effectively designed and efficiently conducted. A party from
whom ESI has been requested must maintain detailed time records to demonstrate
what was done and the time spent doing it, for review by an adversary and the
Court, if requested.
ii. Parties requesting ESI discovery and parties responding to such requests are expected
to cooperate in the development of search methodology and criteria to achieve
proportionality in ESI discovery, including appropriate use of computer-assisted
search methodology, such as Technology Assisted Review, which employs advanced
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analytical software applications that can screen for relevant, privileged, or protected
information in ways that are more accurate than manual review and involve far less
expense.

7. Duty to Preserve Evidence, Including ESI, that is Relevant to the Issues that Have Been
Raised by the Pleadings.
a. The parties are under a common-law duty to preserve evidence relevant to the issues
raised by the pleadings.
b. In resolving any issue regarding whether a party has complied with its duty to preserve
evidence, including ESI, the Court will consider, inter alia:
i. whether the party under a duty to preserve (“Preserving Party”) took measures to
comply with the duty to preserve that were both reasonable and proportional to what
was at issue in known or reasonably-anticipated litigation, taking into consideration
the factors listed in Fed. R. Civ. P. 26(b)(2)(C);
ii. whether the failure to preserve evidence was the result of culpable conduct, and if so,
the degree of such culpability;
iii. the relevance of the information that was not preserved;
iv. the prejudice that the failure to preserve the evidence caused to the Requesting Party;
v. whether the Requesting Party and Producing Party cooperated with each other
regarding the scope of the duty to preserve and the manner in which it was to be
accomplished; and
vi. whether the Requesting Party and Producing Party sought prompt resolution from the
Court regarding any disputes relating to the duty to preserve evidence.
8. Depositions. Absent further order of the Court upon a showing of good cause or stipulation
by the parties, depositions of witnesses other than those deposed pursuant to Fed. R. Civ. P.
30(b)(6) shall not exceed four (4) hours. Rule 30(b)(6) depositions shall not exceed seven (7)
hours.
9. Non-Waiver of Attorney–Client Privilege or Work Product Protection. As part of their duty
to cooperate during discovery, the parties are expected to discuss whether the costs and
burdens of discovery, especially discovery of ESI, may be reduced by entering into a nonwaiver agreement pursuant to Fed. R. Evid. 502(e). The parties also should discuss whether
to use computer-assisted search methodology to facilitate pre-production review of ESI to
identify information that is beyond the scope of discovery because it is attorney–client
privileged or work product protected.
In accordance with Fed. R. Evid. 502(d), except when a party intentionally waives
attorney–client privilege or work product protection by disclosing such information to an
adverse party as provided in Fed. R. Evid. 502(a), the disclosure of attorney–client privileged
or work product protected information pursuant to a non-waiver agreement entered into
under Fed. R. Evid. 502(e) does not constitute a waiver in this proceeding, or in any other
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federal or state proceeding. Further, the provisions of Fed. R. Evid. 502(b)(2) are
inapplicable to the production of ESI pursuant to an agreement entered into between the
parties under Fed. R. Evid. 502(e). However, a party that produces attorney–client privileged
or work product protected information to an adverse party under a Rule 502(e) agreement
without intending to waive the privilege or protection must promptly notify the adversary
that it did not intend a waiver by its disclosure. Any dispute regarding whether the disclosing
party has asserted properly the attorney–client privilege or work product protection will be
brought promptly to the Court, if the parties are not themselves able to resolve it.

Dated: June 1, 2015

/S/
Paul W. Grimm
United States District Judge

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