Stephanie E. Lewis
Jackson Lewis P.C. | Greenville, SC
lewiss@jacksonlewis.com| (864) 232-7000
©2016 Jackson Lewis P.C.
Represents management exclusively in every aspect of employment,
benefits, labor, and immigration law and related litigation
800 attorneys in 57 locations nationwide
Current caseload of over 6,500 litigations
approximately 650 class actions
Founding member of L&E Global
A leader in educating employers about the laws of equal opportunity,
Jackson Lewis understands the importance of having a workforce that
reflects the various communities it serves
©2016 Jackson Lewis P.C.
“These rules . . . should be construed and administered to
secure the just, speedy, and inexpensive determination
of every action and proceeding.”
Rule 1, South Carolina & Federal Rules of Civil Procedure
(emphasis added)
©2016 Jackson Lewis P.C.
©2016 Jackson Lewis P.C.
“It would appear that there is something in the DNA of the
American civil justice system that resists cooperation
during discovery.”
Hon. Paul W. Grimm & David S. Yellin, A Pragmatic
Approach to Discovery Reform: How Small Changes Can
Make a Big Difference in Civil Discovery, 64 S.C. L. Rev.
495, 530 (2013).
©2016 Jackson Lewis P.C.
“The parties shall not make nonspecific, boilerplate
objections. Objections that state that the discovery request
is ‘vague, overly broad, or unduly burdensome’ are,
standing alone, meaningless and will be found meritless by
this court.”
“If a party believes that the request is vague, that party
shall attempt to obtain clarification prior to objecting on this
ground.”
Judge Joseph F. Anderson, Jr. 3:12-cv-02370-JFA
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Objections as to Scope: “If there is an objection based on
unduly broad scope, such as time frame or geographic
location, discovery should be provided as to those matters
within the scope which are not disputed.”
Irrelevance: “An objection that a discovery request is
irrelevant . . . must include a specific explanation describing
why the request lacks relevance and why the information
sought will not reasonably lead to admissible evidence.”
Judge Joseph F. Anderson, Jr. 3:12-cv-02370-JFA
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Formulaic Objections Followed by an Answer:
“The parties shall not recite a formulaic objection followed
by an answer to the request. It has become common
practice for a party to object on the basis of any of the
above reasons and then state that, ‘notwithstanding the
above,’ the party will respond to the discovery request,
subject to or without waiving the objection. Such an
objection and answer preserves nothing and serves only to
waste the time and resources of both the parties and the
court.”
Judge Joseph F. Anderson, Jr. 3:12-cv-02370-JFA
©2016 Jackson Lewis P.C.
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Jones Day Sanctions (Civ. Action 11-4017-MWB)
• Sua sponte imposed by judge
• Overuse of form objections (115 times, over 50% of questions)
• Using frivolous objections to coach and interrupt:
- Q.
Are you familiar with the term
immunocompromised?
- A.
Yes.
- Q.
And that would include premature babies?
- Object to the form. It’s a non-sequitor.
“In case there is any doubt, non-sequitor is not a
proper objection.”
©2016 Jackson Lewis P.C.
“During th[e] deposition, Counsel lodged no fewer than 65
‘form’ objections. . . Immediately after most of these ‘form’
objections, the witness gave the seemingly Pavlovian
response, ‘Rephrase.’
At times, the transcript feels like a tag-team match, with
Counsel and witness delivering the one-two punch of
‘objection’ – ‘rephrase’.”
©2016 Jackson Lewis P.C.
“Attorney Leonhart and I then engaged in an unpleasant
banter back and forth, and at one point in time during that
banter, Attorney Leonhardt actually ducked her head under
the conference room table in my direction.
When I asked her what she was doing, she indicated she
was looking to see if there was anything between my legs.”
Civil Action No. HHDCV146049524S
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“Various counsel at various times in this litigation have
intoned with solemnity that ‘the transcript speaks for itself.’
It does. And the transcripts and e-mails attached to other
motions also speak for themselves. The interactions
between the lawyers that are exposed in those documents
are disgraceful and are the antithesis of the
professionalism and civility which this court has traditionally
associated with the respected law firms by whom those
lawyers are employed. It has escalated and intensified over
the course of these proceedings. It simply can no longer be
tolerated. This behavior demeans the participants,
demeans the witnesses and demeans the very system of
justice itself.” Judge David M. Sheridan
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FBA Has Launched a Task Force to Make
Recommended Changes to Initial Discovery in
Employment Cases:
• Initial Case Management Conference with Lead Counsel and
Judge to Discuss Issues in Case
• Initial Exchange of Categories of Relevant Information
• Agreed-upon Scope in Terms of Time Frame of Discoverable
Information
• More Robust Discussion of ESI
• Happens Early to Streamline the Case and Focus Parties on the
Issues
©2016 Jackson Lewis P.C.
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Broad consensus among practitioners of need for more
active judicial involvement;
Agreed to adopt Judge Anderson’s Order on boilerplate
objections;
Agreed to framework for exchange of information;
Working to have individual judges test the protocols,
which are based on Duke Conference Pilot Project.
©2016 Jackson Lewis P.C.
THANK YOU!
©2016 Jackson Lewis P.C.