Cooperate In Discovery Requests And Follow The Rules, Says Bankruptcy Court Judge
September 12, 2008
Can’t get discovery voluntarily from your opposition? According to a recent bankruptcy case in the U.S. Bankruptcy Court for the Southern District of New York, it’s wise to keep in mind the provisions of Rule 37 before making a motion to compel discovery.
Milagros Reyes file a Chapter 7 bankruptcy case, and was sued by Citibank (South Dakota), N.A. by its counsel, Solomon and Solomon, P.C. Solomon served its first discovery request on Mrs. Reyes’ lawyer. When no responses to those demands were received, they sent a follow-up letter. Without a response from their letter, Solomon made a motion to compel answers to those interrogatories on November 16, 2006.
Solomon failed to include a certification in its motion to compel discovery that it had in good faith conferred or attempted to confer with Mrs. Reyes’ counsel concerning the disputed interrogatories, as is required by both Fed.R.Civ.P. 37 and the Local Rules of the U.S. Bankruptcy Court for the Southern District of New York. Judge Gerber noted that in the absence of unusual circumstances, this failure would demand denial of the motion to compel and, in nearly all cases, an award of the opponent’s reasonable expenses.
Mrs. Reyes’ lawyer finally served the relevant interrogatory answers on Solomon on December 7, 2006, though they were seemingly answered on November 10, 2006, before Solomon’s motion to compel was brought. Apparently, Solomon received the answers on December 11, 2006, only two days before the motion was scheduled to be heard.
All in all, it sounded to the court (in reading between the lines) as if the debtor’s lawyer rushed out the discovery responses in an effort to cover his or her tracks. Though the court found that Solomon acted in “blatant noncompliance with the rule, the resulting damages were also caused, in part, by the delay in service of the interrogatories on Solomon.”
The Court declined to award sanctions against Solomon, however. Though the motion could have been avoided by complying with the “Meet and Confer” requirement of Rule 37, Mrs. Reyes’ counsel’s failure to promptly serve the answers that had been previously executed exacerbated the situation.
In the future, the court cautioned, “counsel are to strictly adhere to the certification requirement in Rule 37 and are to confer in good faith to consensually resolve all discovery disputes before bringing such issues before the Court. Counsel should be on notice that in the absence of unusual circumstances like those present here, any future violations of the “Meet and Confer” requirement causing unnecessary work to be performed by opposing counsel or the Court will result in sanctions.”
The case is In re Reyes, Slip Copy, 2008 WL 724169 (Bankr.S.D.N.Y. 2008).
If you enjoyed this post, make sure you subscribe to my RSS feed!
Comments
Got something to say?
You must be logged in to post a comment.
