Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), demonstrates the importance of following court disclosure rules and protocols. The value of critical evidence was blunted by a failure to do so.
“The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship.”
“The Maryland Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he files and tries a case.”
Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (Emphasis added).
The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.” Colonial Carpets, 36 Md.App. at 584-85, 374 A.2d at 421.
“Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.” Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).
In a recent employment case, the court in Black v. New England Computer Svcs., Inc., 2021 WL 822319 (D. Conn. Mar. 4, 2021), stated the issue clearly:
Wikipedia defines a “Perry Mason moment” to be “whenever information is unexpectedly . . . and often dramatically introduced into the record that changes the perception of the proceedings greatly and often influences the outcome.” Counsel for the plaintiffs in this action planned a Perry Mason moment. She deposed one of the defendants about a key meeting he had with one of the plaintiffs and then surprised him with a secret tape recording that contradicted his sworn account.
But the problem is that this Court’s initial discovery protocols required counsel to disclose the recording from the get-go of this lawsuit. Counsel did not do so. And so the defendants now move to preclude the recording for an obvious violation of the Court’s discovery rules. I will grant their motion.
The court explained that it was one of numerous federal districts that have adopted special disclosure rules in most employment discrimination cases. The court protocols required early disclosure of certain information, including this information.
Plaintiffs’ counsel stated that disclosures would be served. That proved to be a serious error, because the secret recording was not disclosed. The court wrote: “This was a clear violation of the Protocols’ initial disclosure requirements.” It continued:
Having previously assured the Court that they would make their initial disclosures as required under the Protocols, the plaintiffs are in no position now to challenge the validity of the Protocols as inconsistent with Rule 26(a) .
The court protocols superseded any impeachment exception to disclosure. “If counsel in good faith had believed that the Protocols were subject to an impeachment exception, one might have expected counsel to say so when she made her disclosures to the defendants. But the record here shows that counsel promised to produce ‘[a]ll communications concerning the factual allegations or claims at issue in this lawsuit with the plaintiffs and the defendant,’ with nary a mention of withholding any documents for impeachment purposes….” [Emphasis added].
Some of the risks of overpromising were discussed in a prior blog, “Requests for ‘Any and All’ Documents Are Obsolete.”
The court explained that: “It is no answer to say that Anatra was not privileged to lie or misstate facts during his deposition (if that is what he did). When months or years elapse between a meeting and a sworn deposition about what was said at the meeting, a witness’s account may depart from what actually occurred for reasons not evincing an intention to deceive but for lack of memory or accurate recollection. The relevant issue is that Anatra had a right under the Protocols to listen to the recording before facing interrogation at his deposition about what he had said.”