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| Plaintiffs file for Mandatory Discovery Conference; June 2, 2008 | |
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| Topic Started: Jun 2 2008, 12:53 PM (1,963 Views) | |
| Quasimodo | Jun 2 2008, 12:53 PM Post #1 |
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA No. 1:08-cv-119 ) EDWARD CARRINGTON, et al., ) ) Plaintiffs, ) v. ) ) DUKE UNIVERSITY, et al., ) ) Defendants. ) _____________________________________ ) MOTION TO REQUIRE DEFENDANTS TO PARTICIPATE IN THE MANDATORY RULE 26(F) DISCOVERY CONFERENCE Plaintiffs respectfully file this motion requesting that the Court order counsel for the Defendants to participate forthwith in the mandatory discovery conference required by Rule 26(f) of the Federal Rules of Civil Procedure or in the alternative to set an initial scheduling conference pursuant to Rule 16(a), which would then require that Defendants participate in a Rule 26(f) conference at least 21 days in advance thereof. In support of this Motion, the Plaintiffs state as follows: 1. Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, it is mandatory, except in certain exempted proceedings which do not apply here, for the parties to confer “as soon as practicable” regarding “the nature and basis of their claims and defenses,” the plan for initial disclosures, preservation of relevant evidence, and for creating a discovery plan to govern among other things the timing and form of discovery. (snip) 2. In accordance with the requirement in the Rules that the mandatory Rule 26(f) conference should occur “as soon as practicable” and certainly in advance of the court issuing its own scheduling order, Plaintiffs’ counsel has approached counsel for the Defendants in an attempt to schedule this conference and has been informed that Defendants will not participate in this conference while motions to dismiss are pending or until the Court schedules a discovery conference. Since there can be no discovery until the Rule 26(f) conference occurs, by refusing to meet, Defendants are unilaterally instituting their own de facto stay of discovery without having sought the Court’s approval or explained why such a stay should be granted in this case. 3. There are compelling reasons why both the Rule 26(f) conference and discovery should proceed expeditiously in this case. A significant part of a Rule 26(f) conference is discussing the preservation steps the parties are taking to ensure that relevant evidence is not lost. This concern is especially paramount for electronically stored information (“ESI”) such as email that due to the routine operation of a computer system may get overwritten or made significantly more burdensome and expensive to retrieve with the passage of time. Waiting months, if not longer, while a motion to dismiss is pending to discuss what sort of information will be required in discovery, how ESI will be preserved, and how ESI and other information will be produced will likely create far more disputes and difficulties than if those issues are dealt with at the outset as Rule 26 intended. Moreover, it is a simple fact that time is not the friend of discovery. The more time that passes, the more opportunity there is for relevant information to be lost or destroyed. Memories fade, servers crash, backup tapes get overwritten, etcetera. While the parties should be able to agree on some reasonable limitations on discovery while motions to dismiss are pending (and indeed the good faith attempt by parties to fashion these sorts of resolutions for a discovery plan is what Rule 26(f) contemplates), for the most vulnerable of evidence, such as email, discovery should not have to wait until the end of the motions practice or there is a very high chance that some relevant evidence will no longer exist. Certainly the decision to forgo or otherwise frustrate any discovery, including discovery into email and other vulnerable ESI, should not be made by Defendants’ unilateral refusal to participate in the mandatory Rule 26(f) conference. (snip) For the foregoing reasons, Plaintiffs respectfully request that the Court either order the Defendants to participate forthwith in a Rule 26(f) conference or that the Court schedule an initial discovery hearing pursuant to Rule 16(a) of the Federal Rules, which will trigger the requirement that Defendants participate at least 21 days in advance in a Rule 26(f) conference. A proposed order is attached. Dated: May 22, 2008. Respectfully submitted, Edited by Quasimodo, Jun 2 2008, 12:56 PM.
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| Tidbits | Jun 2 2008, 01:00 PM Post #2 |
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http://www.bork.com/downloads/MotionforMandatoryDiscoveryConference.pdf |
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| Tidbits | Jun 2 2008, 01:01 PM Post #3 |
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One more indication that, of the defendants Wilson has the best lawyer. See ft 1, page 4 HT: RT |
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| DMom | Jun 2 2008, 01:02 PM Post #4 |
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Is the 'request for discovery conference' something that was to be expected..... or is it unusual? (I'm not an attorney, so do not know if this is a logical progression ....) |
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| Tidbits | Jun 2 2008, 01:04 PM Post #5 |
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| RighteousThug | Jun 2 2008, 01:22 PM Post #6 |
Hoolie back by popular demand! ;>)
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Thought it was interesting that Linwood's lawyer counseled him to confer w/ the plaintiffs. That's got to cause some sphincters to pucker. |
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| old lady | Jun 2 2008, 01:47 PM Post #7 |
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Dmom, I think it is standard operating procedure to have a discovery conference as early as possible, and it is required. However, it looks like the the other side is thumbing their collectivist noses at the filing requesting the court to enforce this mandatory conference. If I have it wrong I will simply defer to those who know better. Honest questions deserve honest answers imo. |
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| chatham | Jun 2 2008, 03:36 PM Post #8 |
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Lets hope the Judge gets the word out that this case needs to move forward. |
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| QuadDog | Jun 2 2008, 04:21 PM Post #9 |
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I think at this point I would move that Duke and DPD preserve ALL email and other electronic records until any discovery is complete. I remember the DPD conveniently overwriting audio tapes. |
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| Baldo | Jun 2 2008, 04:45 PM Post #10 |
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There is one Defendant with whom plaintiffs’ counsel has been able to confer, Defendant Linwood Wilson, who is acting pro se and who has not provided any contact information to counsel. Linwood Linwood Linwood! Sing your heart out! http://www.spokesmenquartet.com/track08a.mp3 Get Happy Linwood - There's Joy in that Land of Redemption |
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| QuadDog | Jun 2 2008, 04:58 PM Post #11 |
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I wonder if Linwood and the fong are still buddies? NOT!! |
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| Walt-in-Durham | Jun 2 2008, 07:31 PM Post #12 |
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The spoliation of evidence doctrine says that if a party cannot come up with a requested document, then the jury is to presume that it was harmful to the party. In civil cases it is always best to have the documents, emails, tapes, whatever rather than have the jury speculate on just how harmful it was. Walt-in-Durham |
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| Kerri P. | Jun 2 2008, 07:42 PM Post #13 |
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If I were the plainitffs lawyers I would bring up the fact that the DPD destroyed a police dispatch tape of that night [Kroger's Call] and it was ordered to be turned over to the defense by judge Stephens. The DPD destroyed that type something like two days before they were supposed to hand it over. IIRC. The DPD gave half baked bullsh!t story as to why they did what they did with that type Edited by Kerri P., Jun 2 2008, 07:45 PM.
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| chatham | Jun 2 2008, 07:57 PM Post #14 |
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The DPD gave half baked bullsh!t story as to why they did what they did with that type The DPD will have federal oversite in chief JLo's offoce when this case is over. el Jefe JLo |
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| sdsgo | Jun 2 2008, 08:40 PM Post #15 |
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Everything you ever wanted to know about spoliation of evidence in the 4th Circuit and more. Link |
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5:49 AM Nov 26
