In federal court we know the courts tend to limit discovery periods to shorter times than state courts, usually 90 to 120 days with some even shorter, i.e. the “rocket dockets.” A very recent case in the Eastern District of Pennsylvania instructs that we must pay much closer attention to the progress of discovery and that the practical deadline is much earlier than the actual. In United States ex rel. Yoash Gohil v. Sanofi U.S. Services, Inc., C.A. No. 02-2964 Slip. Op. (E.D. Pa. 4/16/20) Judge Anita Brody, generally known for fair and generous discovery periods, reached the “end of her rope” when Defendant’s counsel, in an extraordinarily long running case, waited until the day before discovery was set to end to file their Motion to Compel discovery. Defendant’s counsel did not offer an explanation for the timing. Though the Motion to Compel was technically “timely” filed within the discovery period, the Court essentially found the Defendant’s Motion to be a bad faith tactic. The Court exercised its discretion and denied the Motion to Compel as untimely.
The Sanofi Opinion is instructive because it lays bare the inherent pitfalls of discovery timing. Assuming written interrogatories and document requests are served at the outset of discovery, the opposing side has thirty (30) days to respond and typically extensions are granted; we all ask for them. Once the discovery responses are received, invariably, there are objections and disputes over the discovery provided. Typically, it takes weeks or longer to argue over the discovery, all of which is usually needed before setting depositions.
Mapping out this discovery time, even if we are acting quickly, many times we are 60 to 90 days into discovery before we get acceptable responses/documents or determine a motion to compel needs to be filed. By this time, the discovery period is quickly approaching the deadline. Do you then take depositions without full written discovery? Doing so is not the best way to represent the client. What if you need to send a second set of discovery requests? What about following up with those requests? We then start the discovery dance with opposing counsel all over again.
The significance of the Sanofi decision, and its citation of many courts in agreement, is that serving discovery requests in the last 30 to 45 days of the discovery period, given the usual discovery dance, very likely may not give a party enough time to file a motion to compel discovery. While the Sanofi facts were rather extreme, the Court, citing Rules 26 and 1, F.R.C.P., held that motions to compel filed near the end of the discovery period are untimely, citing cases where it was 11 days, 10 days, 4 days, and 1 day.
Practically, we believe the test will be more general and not limited to a specific number of days before a discovery motion may be considered untimely. Trial counsel, however, may be second guessed and the courts may conclude that counsel had “ample time to conduct discovery,” whatever that time is, and deny further discovery as it is in the court’s discretion.
Given our schedules and daily “fires” that control our attention, there is a tendency to feel a false sense of complacency when dealing with discovery and considering our profession’s propensity to procrastinate. Give a trial lawyer 90 days (or a mouse a cookie) and many other things are going to be vying for her attention besides drafting and filing mundane discovery requests. This coupled with our desire and need to be civil and courteous to opposing counsel in granting extensions of time can lead to delayed discovery and then trial disaster; trial lawyers beware.
ABOUT NEIL MORRIS
Neil A. Morris is Chair of the firm’s Philadelphia Labor and Employment Group. He has passionately represented employers for the last 30 years. He concentrates in the areas of labor and employment, municipal labor law, employment discrimination, defamation defense, commercial litigation, and business litigation. He has served as Special/Labor Counsel for more than 35 Pennsylvania Townships and Boroughs, the County of Bucks and many private employers. He is often brought into municipalities to handle “crisis” situations involving employees and/or management.
ABOUT GABE CELII
Mr. Celii devotes his practice to representing businesses and municipal entities navigating labor and employment disputes ranging from wage and hour litigation and workplace discrimination defense to labor negotiations and the resolution of grievances. During his representation of Philadelphia-area Townships and Counties, he has successfully defended claims brought against public officials and advised municipalities on the drafting of local ordinances, such as Police Pension DROP amendments.
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