Court States: Pick Up the Telephone

In Jennings v. USAA Casualty Insurance Co., 2025 WL267168 (W.D. Wash. Jan. 22, 2025), each side blamed the other for delay.  The court wrote:

Here, the Court questions whether the parties have acted with sufficient diligence in pursuing discovery. It seems much of the delay each side blames the other for could have been resolved by simply picking up a telephone, calling opposing counsel, and discussing the ESI protocol rather than sending letters, and waiting for a response; apparently each side waits approximately 30 days each time to respond to written correspondence.

The Jennings court discussed a series of discovery events, and added: “The parties should be proactive in following-up with their discovery so as not to run into conflicts with the discovery cutoff.”

The court ruled:

Despite this, the Court finds it appropriate to grant an extension of the class certification deadlines so the parties may complete discovery. To the extent Plaintiffs contend they need additional time to “complete negotiations” concerning ESI custodians and search terms, the evidence before the Court suggests the parties have reached agreement on these points, given that Defendants have agreed “without qualification” to Plaintiffs’ proposed search terms and custodians. The parties should be diligent in completing discovery and should already calendar any depositions the parties seek to conduct—in other words, do not wait until the last two months to reach out to the other side to schedule depositions. The parties should not expect additional extensions absent extraordinary circumstances.

In 1850, Abraham Lincoln wrote: “Persuade your neighbors to compromise whenever you can…. As a peacemaker, the lawyer has a superior opportunity of being a good man [or woman].”  See Failure to Cooperate Costs Clients Money (Mar. 8, 2022).  In one recent decision, a court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.”  See There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).  To a similar affect, another court wrote that, for many decisions, there is no right or wrong answer, and courts have “vast discretion in resolving discovery disputes….”  Id.