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Notice to Opposing Counsel in Discovery: The Intersection of Technology and Courtesy

Communication with the other side in discovery is important in litigation. Depositions must be scheduled and noticed. Discovery responses (and disputes about them) must be addressed. And technology—namely email—has made this process much more efficient. But reliance on technology as a means of conferral and notice also comes with its own problems. This post explores how email communication problems have played out in some recent cases. It then provides some tips on how to use technology to provide appropriate notice and to ensure compliance with court orders and professional obligations.

Client Who Missed Deposition Because Notice Went to Counsel’s Junk Mail Faces Dismissal1

In a recent case out of Wisconsin, a technological glitch and overall failure to communicate has led to a possibility that a client’s entire action will be dismissed. The case involved a suit in Wisconsin federal court that had progressed to discovery. Both sides were represented by counsel. Defense counsel set the plaintiff’s deposition for June 6th and claimed to have sent a notice of that deposition to the plaintiff’s lawyer by email. June 6th came and went, and the plaintiff never appeared for the deposition. Defendants then moved to dismiss the plaintiff’s entire action as a sanction. In response, the plaintiff’s lawyer claimed he had never received notice of the deposition because the notice the defendants’ lawyers had sent by email ended up in his junk mail folder. The plaintiff’s lawyer also pointed out that defense counsel had not followed up by phone and suggested that defense counsel probably knew that the email had not been received. The plaintiff’s lawyer contended that as soon as he realized what had happened, he reached back out to defense counsel to reschedule, but defendants refused.

The court in this case has yet to rule on this motion to dismiss, and dismissal is a drastic sanction, even for bad faith conduct. Even if the court refuses to dismiss, the parties have had to expend resources bringing this issue to the court. The case is a cautionary tale of how communication with opposing counsel can go south, with technology playing a role in that process.

Plaintiff’s “Strategic” Use of Email Backfires2

As this next case demonstrates, courts are aware that parties may try to “game” the system by using email communications for their advantage. For example, in a case out of Colorado federal district court, a plaintiff was taxed for the costs of failing to appear for a deposition after it became clear to the court that the plaintiff had not properly communicated with defense counsel by email. The plaintiff (who was pro se) and defense counsel had communicated by email about the plaintiff’s deposition. Communication had been sporadic, with the plaintiff responding to some, but not all, email correspondence. When the plaintiff informed defense counsel via email at the last minute that he wouldn’t be attending until the court had ruled on an objection he had lodged, defense counsel replied that the deposition had been properly noticed and that attendance was mandatory. Rather than responding to that email, the plaintiff filed a motion for a protective order with the court and served it on opposing counsel by mail, rather than email. This essentially ensured that defense counsel would plan for the deposition, but would not get actual notice of the motion for a protective order in time. The Court found the plaintiff’s actions questionable, noting that the plaintiff conveniently failed to inform opposing counsel about the protective order by email—the means of communication that he had previously been using—perhaps for a strategic advantage in the litigation. This gamesmanship did not make the court very happy and sanctions were ultimately awarded for the plaintiff’s failure to attend the deposition.

Tips for Using Technology to Communicate and Confer with Courtesy

These cases are just two of the many examples of how use of technology can cause additional problems when communication goes awry. But this doesn’t mean we should revert back to sending everything in a certified letter via U.S. mail. Here are several tips for how to use technology in a productive way for communicating with the other side in litigation.

1. Set Ground Rules for Communication at the Outset

Whether you are dealing with opposing counsel or a pro se party, it is a good practice to set some ground rules for use of technology at the outset of the litigation. In the parties’ meet and confer, consider documenting how the two sides will confer on important questions and will exchange required notices or schedule depositions. If both sides agree at the outset to use email as the first line of communication for these matters, it will be reasonable to rely on this method. And if counsel stops responding to emails or a party does not show up for deposition after being noticed through email this agreement may become crucial in a motion for sanctions or a motion to compel.

Also, when working with opposing counsel, exchange the names and contact information for each other’s office staff. Confirm emails of assistants or alternate emails to ensure important information is received in the event that counsel is out of touch or there are any technological snafus.

2. Check Junk Mail and Filters

Another suggestion is to ensure your junk mail filters are working properly. It is not unusual for our “junk mail” filters to go rogue and eat important email. It is a good practice to check junk mail regularly. Be sure to set filters to ensure that emails that should be finding their way to the inbox are not rerouted. You could also add opposing counsel’s email address to a “safe” senders list.

3. Phone for Important Follow-up

In many cases, it is tempting to simply set the deposition or file a motion to compel if met with unresponsiveness from the other side. But if there is a question about whether the other side has actually received an important email, try a follow up phone call, either to confirm the email has been received or to quickly resolve the matter. Some counsel do better with phone calls, and sometimes, a two minute phone call can go a long way toward alleviating misunderstanding. In some cases, however, counsel is simply being evasive or ignoring communication. In these situations, the failure to respond to an email when it was clearly received could be a deliberate decision to ignore the email’s contents or request. Make sure to document the efforts at communication with both counsel and staff. If, after emails and phone calls, you are still unable to confer or schedule, the court may have to become involved. And if you have to involve the court, demonstrating your efforts at communication may go a long way toward strengthening your position.

4. Consider Serve-Only Filings

In Colorado state court, serve-only filings in ICCES—the statewide e-filing system—can be a helpful way to demonstrate real effort at getting information to the other side. For example, while a deposition notice could be sent to opposing counsel via email, if there is a concern about whether opposing counsel will claim it was received, serving it via ICCES is a good option. By completing a serve-only filing, there will be no question about whether notice was received by opposing counsel in a given case.

5. Be Courteous

The best counsel we’ve worked with, and whom we take as our models, are always courteous. They give timely notice and express themselves politely, not stirring up trouble in the case. When we’ve gotten snippy (even if the other side deserved it), we’ve usually regretted it. When in doubt, leave the email in draft for a while, and have someone else read it with a cool eye before sending.

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Fader v. Telfer, No. 2:16-cv-01107 (E.D. Wisc.); see also Jonah Beleckis, Lawyer: UW-W coach missed deposition because emails landed in ‘junk’ folder, GazetteXtra (July 5, 2017), http://www.gazettextra.com/20170705/lawyer_uw_w_coach_missed_deposition_because_emails_landed_in_junk_folder.
Lammle v. Ball Aerospace, 11-cv-03248-MSK-MJW (D. Colo. May 7, 2013).
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