We always enjoy cases that help us navigate discovery, electronic or otherwise, especially when they are from our state or Circuit.  We also like cases that are clear in their holdings and we like them even more when they employ some descriptive language to let us know just how the Court feels about an issue.  In  Lee v. Max International, the Tenth Circuit Court of Appeals upheld a lower court that dismissed a party’s action after three discovery violations.  Judge Neil Gorsuch begins the opinion with a question that highlights the underlying motivation behind nearly all of the scary e-discovery sanctions that become the cautionary case law boogeymen, like Morgan Stanley, Qualcomm, et al.

The question: “How many times can a litigant ignore his discovery obligations before his misconduct catches up with him?”  Anyone working in litigation knows the answer could be one, but here, the bench grants some leeway, but formally draws the line at three.  In affirming the magistrate’s decision to dismiss, Judge Gorsuch writes “Our justice sytems has a strong preference for resolving cases on their merits whenever possible, but no one, we hold, should count on more than three chances to make good a discovery obligation.”  (p.2).

Essentially this is squarely a common sense holding.  Every practitioner worth their salt will tell you they don’t expect to be able to “get around” discovery obligations or sweep it under the rug when a mistake is made.  In fact, it is close to universally known that when there are legitimate discovery issues, the bench will provide some grace to a party that comes clean or acts to limit any resulting impropriety or unfairness from a discovery omission or error.  The Lee holding, citing the U.S. Supreme Court, informs that the lower courts that are actively involved and know the details of the discovery dealings are in the best position to decide the sanctions.   (National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)).  Moreover, Gorsuch noted from National Hockey League, the lower court’s ability to sanction is the best tool as a matter of justice and “to deter [others] who might be tempted to [similar] conduct.”  (National Hockey League, 427 U.S. at 643).

A couple of other interesting comments from the Lee holding include:

  • “Discovery misconduct often may be seen as tactically advantageous at first.  But just as our good and bad deeds eventually tend to catch up with us, so do discovery machinations.”
  • “Discovery is not supposed to be a shell game, where the hidden ball is moved round and round and only revealed after so many false guesses are made and so much money is squandered.”

We are coming up on a decade in the litigation support business and live, eat and breathe discovery.  There have been many times where we have been called in right in the middle of a challenging situation and have been able to utilize our experience, expertise and technology to quickly and efficiently preserve and capture critical data for our clients.  If we can ever be a resource to the execution of your practice, don’t hesitate to contact us a resource.  We never charge for consultations and can typically provide a variety of solutions based on price, critical need and timelines.  For a complete copy of the Lee  holding, please click here:

Lee v_ Max International, LLC.pdf (26,7 kB)