Under the FRCP, it’s required that counsel make reasonable efforts to ensure compliance with discovery activities. In other words, the role of outside counsel is to go beyond just asking for a client to do something but must follow up with the client to ensure it was done correctly.
In this antitrust case, the plaintiff, Optronic, filed a post-judgment motion for sanctions against the defendant, Ningbo, and his counsel.
The plaintiff served post-judgment document requests and interrogatories in relation to the enforcement of the judgment. The defendant’s legal counsel signed the defendant’s document request responses representing that all responsive documents would be produced.
The Court eventually ruled that the defendant deliberately withheld two documents from production and no e-discovery vendor was involved in the initial collection or production. The defendant’s counsel argued that the defendant understood the advice they gave the defendant and had searched for responsive documents but the law firm had failed to inquire further.
• No Reasonable Effort by Counsel. The Court found that the defendant’s counsel failed to make a reasonable effort to ensure that Ningbo produced all documents responsive to plaintiff’s request. Neither of Ningbo’s counsel took a sufficiently active role in supervising Ningbo’s collection and production of documents.
• The Role of Counsel in E-Discovery Activities. Counsel does not always have to personally conduct or supervise client’s collection, review, and production of documents but must make reasonable efforts to ensure compliance with discovery.
• Monetary Sanctions Against Defendant’s Counsel. The Court imposed monetary sanctions against the defendant’s counsel “with respect to: (1) preparing the portion of the joint discovery dispute letter directed to Ningbo Sunny’s failure to comply with its obligations to produce responsive documents; (2) the portion of the . . . hearing concerning Ningbo Sunny’s document production and failure to comply. . . and (3) the briefing and hearing . . . for sanctions that concerns Sheppard Mullin’s failure to conduct a reasonable inquiry regarding Ningbo Sunny’s compliance with its obligation to produce responsive documents.”
Download the PDF version of Optronic Tech Inc. v Ningbo case law alert here.
This case is a cautionary tale for legal counsel whose clients do not comply with their discovery obligations. Where, as here, outside counsel cannot (or do not) conduct sufficient “due diligence” to ensure reasonable compliance, both client and counsel may be held jointly liable for resulting monetary sanctions.