There is No “Tit for Tat” Defense to a Discovery Request

In Middien v. Gillgan, 2026 WL 2456336 (C.D. Cal. Aug. 4, 2026), the court wrote:

An assertion in opposition to a motion to compel that the moving party has been remiss in fulfilling the moving party’s discovery obligations presents a non sequitur. See, e.g., Harrison v. Comm’r Gary Lanigan, 2016 WL 3626524, at *2 (D. N.J. July 1, 2016) (“there is no place for ‘tit-for-tat’ in a court of law. One party’s failure to comply with certain rules and procedures is not an excuse for another party to do the same”); Genentech, Inc. v. Trustees of University of Pennsylvania, 2011 WL 7074208, at *1 (N.D. Cal. June 10, 2011) (“A party may not excuse its failure to comply with discovery obligations by claiming that its opposing party is similarly delinquent. Nor may a party condition its compliance with discovery obligations on receiving discovery from its opponent.”) (citations and quotations omitted). [emphasis added].

I wrote about a similar holding in the lawsuit involving Ms. Blake Lively, Mr. Justin Baldoni, and others.  Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us” (Aug. 30, 2025).

It is established that Defendant Can’t Insist on an “I Go First” Deposition (Mar. 23, 2023) (quoting Fed.R.Civ.P. 26(d)(3): “Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.”

In a similar context, one court wrote:

“Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that [t]he parties should not simultaneously be in production while still negotiating their ESI protocols.’ That is an argument for the parties to reach prompt agreement as to an ESI protocol, not for delaying production.”

Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production (Apr. 26, 2026).