Failure to Cooperate Costs Clients Money

Much has been written about the duty to cooperate.  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].” [1]

No attorney wants a judicial opinion stating that they have wasted the client’s money.  A decision by the Hon. Stephanie A. Gallagher in McNulty v. Casero, 2020 WL 3451980 (D. Md. Jun. 24, 2020), reemphasizes the importance of cooperation in avoiding that outcome:

This case is yet another paradigmatic example of how the inability of counsel to work cooperatively creates vexatious litigation for the courts, and wastes a client’s money. [emphasis added].

In McNulty, in May 2017, defense counsel sought plaintiffs’ availability for depositions. “Then, on September 12, 2017, [defense counsel] reinitiated these discussions, seeking opposing counsel’s availability for these same depositions, because opposing counsel still had not provided their availability.”  Receiving no response, defense counsel sent a follow-up email a few days later.  After motions were filed, the Court wrote:

The emails [between counsel that were attached to the motions] are replete, however, with opposing counsel’s apparent effort to avoid scheduling the depositions [stating]…. “We have your emails, and discovery requests, and filings. We will respond in due course in accordance with the rules and orders of the Court. We’ll try to get in touch with you on Thursday [the 14th].”…  “The day got away from both Amy and me. We will try to give you a call next week.”

The parties spoke on September 18^th; however, opposing counsel still failed to provide deposition dates.

In a follow-up email, opposing counsel suggested to [defense counsel] that he “provide us with some blocks of time during which you would like to take depositions and we would work with you to schedule them. I also asked that you build in sufficient time for any motions we may have regarding the propriety of the deposition.”

Due to the approaching discovery deadline, defense counsel then noted twelve depositions. The Court continued:

On September 26, 2017, Plaintiffs’ counsel then emailed [defense counsel] to describe their objections to the twelve depositions noted for October 2 and 4, 2017, and demanded that the notices be withdrawn…. [Defense counsel] declined to withdraw the notices….  In the remaining exchanges that day, Plaintiffs’ counsel did not provide alternative dates for the depositions, even after [defense counsel]’s renewed inquiry on September 27.

The Court wrote that:

If Plaintiffs’ counsel knew from the outset that they were going to object to the deposition of certain persons listed in [defense counsel]’s May, 2017 email, they should have raised those substantive objections early, and attempted to resolve them amicably. If such a resolution was not feasible, then Plaintiffs’ counsel should have preemptively moved for a protective order to prevent Defendants from deposing those individuals. Instead, Plaintiffs’ counsel placed [defense counsel] between a rock and a hard place: either wait until Plaintiffs’ counsel provided deposition dates, which might not happen within a reasonable timeframe, and risk abutting the impending December 28, 2017 discovery deadline…; or note the depositions, and risk a motion for protective order and accompanying fee request. [emphasis added].

However, the Court also noted that:

To be fair, neither side is totally blameless in this situation – for instance, perhaps the best route for [defense counsel] to choose was not sending twelve deposition notices that gave opposing counsel, and the deponents, only a week to prepare, despite a professed willingness to “accommodate” their schedules. But suffice it to say that, because Plaintiffs’ counsel significantly contributed to the circumstances giving rise to their “Emergency Motion,” a fee award [to plaintiffs] is unjust in this case.

Who lost?  The Court wrote that:

The harm accruing to the [plaintiffs] and the [defendants] – individually – is not lost on the Court. The [plaintiffs] apparently expended over $10,000 in attorneys’ fees to litigate just a single motion, and the [defendants] also likely incurred significant fees in the process, too. But, as explained above, the Federal Rules of Civil Procedure offer neither party any recourse. [emphasis added].

The Maryland federal Court’s Discovery Guideline 1, case law, and the State decision in Rodriguez v. Clarke, 400 Md. 39, 60 (2007), each recognize the duty to cooperate.[2]  The failure of both sides to cooperate is not new. Maker’s Mark: What Happens When Neither Party Cooperates? – E-Discovery LLC (ediscoveryllc.com).  In Maker’s Mark, the failure of both sides to cooperate canceled each other out.   There, Maker’s Mark’s failure to cooperate deprived it of a potential remedy.  McNulty reached a parallel result.  The inability of counsel to work cooperatively wasted the client’s money.

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[1] Cooperation as a requirement was recognized in Maryland in J. Pike and J. Willis, The New Maryland Deposition and Discovery Procedure, 6 Md. L. Rev. 4, 32 (1941).

[2] In addition to creating other problems, the failure to cooperate may lead to sanctions.  Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications – E-Discovery LLC (ediscoveryllc.com) .“Should a party fail, at any stage in the discovery process, to cooperate in providing access to discovery information, Maryland Rule 2–433 provides that trial judges may issue … sanctions….”  Rodriguez, 400 Md. at 60.