Too Busy to Respond to Discovery = Waiver of Objections & Sanctions

I’ll give the defendant in Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4625727 (M.D. Fl. Oct. 30, 2024), credit.  It was candid with the court.  Despite several extensions of time, the defendant essentially told the court that it had been too busy to respond to discovery.  While candor is commendable, sanctions were imposed.

Plaintiff Orlando sought discovery from defendant HKS.  The response deadline was extended by agreement; however, “HKS did not meet that deadline, and after a conference between counsel, HKS agreed to provide responsive documents by October 15, 2024.”  However, in the court’s words “HKS did not comply with that deadline either.”

Orlando moved to compel and sought a fee award.

HKS’s response was that it had been too busy. The court wrote:

HKS has filed a response, in which HKS does not contest any of Orlando Health’s assertions, admits it has not produced responsive documents, and does not address any objections…. Instead, HKS basically says that it was busy with a project, which has now neared completion, HKS “is now able to devote the resources necessary to produce,” and HKS is reviewing the production for privilege and will begin producing within ten (10) days….  HKS also does not address Orlando Health’s request for fees under Rule 37(a)(5). [emphasis added].

The Orlando Health court was unimpressed.  It granted Orlando’s motion to compel and for fees in an amount to be determined.  It ordered: “Within fourteen (14) days of the date of this Order, HKS shall produce all documents in its current possession, custody, or control responsive to Orlando Health’s First Request for Production….  All objections to the discovery at issue, other than privilege, have been waived by the failure to timely respond to the discovery.” [emphasis in original].

The takeaway is clear.  Agreements are enforceable.  And, the rules of procedure and court orders are not “mere guides” or “helpful hints.”  Instead, they are “precise rubrics that are to be read and followed….” See “I hate, hate, hate motions for sanctions,” quoting Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977).

The Colonial Carpets Court wrote that procedural rules “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 [or she] files and tries a case.”

“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).

Here, HKS made agreements and did not perform.  Courts have held that a Stipulation is a Binding Contract (Oct. 11, 2024).

Further, stipulations often become court orders: “[S]o, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like it will be difficult or impossible for you to comply with the order, then you should move to modify the order with reasonable diligence, explaining why the order has become difficult or impossible for you to comply with.”  Is a Court-Ordered ESI Protocol a Trap? (Sep. 14, 2024), quoting Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024).  The Cook court continued:

What you’re not supposed to do is pretend like the order doesn’t exist, or pretend that your violations are somehow a form of compliance, and then hope your opponent doesn’t point out what you’re doing.

Timeliness can be dispositive. See Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024).

In one recent decision, plaintiff’s case was dismissed for filing 16 minutes late due to technical mistakes.  Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023). “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.”  Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023).  While I suggest that was overly harsh, id., it was the result.

In Orlando Health, having received extensions by consent, HKS’s failure to perform led to significant consequences.