Monday, February 9, 2015

Public Record Sheds Little Light on the "One Millionth Discovery Dispute" and the ABA Journal both reported last week on an order entitled "Order on One Millionth Discovery Dispute" issued by Judge Rosemary Collyer in the case of Carolyn Herron v. Fannie Mae et al., No. 10-943 (D.D.C. February 2, 2015).  (The Blog of Legal Times earlier reported strained relations between the parties' counsel dating all the way back to 2011.) 


"The parties bring yet another discovery dispute before the Court," began the judge, proclaiming herself "exhausted with these disputes."  The order and the stories that reported it implied that the parties were equally to blame for the contentiousness of discovery and the repeated extensions of the discovery cutoff.    


So I wondered: what actually happened in this case?  Was discovery to blame for the case's five-years-and-counting duration?  If so, was there any way to attach responsibility, beyond the standard allegations of "overbroad fishing" by the plaintiff and "stonewalling" by the defendants?  


Through PACER I accessed the docket record and many of the documents filed in the case.  In my view, the most striking thing that I found is that it is virtually impossible for a member of the public using only PACER to get to the bottom of discovery in this case. 


This is not just because Rule 5 of the Federal Rules of Civil Procedure  prohibits the filing of discovery documents "until they are used in the proceeding or the court orders filing."  The public unavailability of most of the discovery disputes in this case on PACER results from two additional things.  First, Judge Collyer required the parties to bring discovery disputes to her attention by letter to her chambers, followed by a telephone conference, usually followed by a brief minute order.  Thus, unlike a formal motion to compel that would attach the discovery documents at issue as exhibits, rendering them available on PACER, the details of these disputes are not publicly available.  Second, protective orders were entered that required the filing under seal of the lion's share of the formal motions and responses that did get filed.       

Here is what I did find.  As background, the complaint contains a "preliminary statement" that alleges:


Plaintiff, Caroline Herron, files this action against her former employer, Fannie Mae, and Fannie Mae officials, for terminating her because she raised criticisms about how Fannie Mae was (1) implementing its role to assist the Department of the Treasury (“Treasury”) in modifications of home mortgage loans, (2) engaging in a gross waste of public funds, and (3) violating its contract with Treasury.


The case was filed in June 2010.  Four motions to dismiss occupied much of the first two years of litigation.  The results of the four motions to dismiss were (1) the dismissal of one count (of four counts) of the complaint and (2) the dismissal without prejudice of the punitive damages claim.  In other words, much of the plaintiff's complaint remained intact after two years of attack.


Naturally, the first discovery deadline, which had been optimistically set before the resolution of the motions to dismiss, had to be extended.  The case also spent a few obviously unfruitful months "referred to the Circuit Executive's Office for participation in the Court's ADR mediation program."


The matter was complicated by the intervention of the Federal Housing Finance Agency, in its capacity as Conservator for Fannie Mae.  But to a casual skimmer like me, it was the involvement of the United States Treasury Department that appeared to generate almost as many disputes and delays as those occurring directly between the plaintiff and Fannie Mae.  For example, it seems that Treasury took over seven months just to review documents. 


With the caveat that the details – usually even the identity of the movant – were not filed in the public docket or were filed under seal, here are some "minute orders" entered after telephone conferences between the parties and the Court:


  • August 2012: "Defendants to propose search terms for e-discovery to Plaintiff" and ordered Defendants to produce certain information from the individual defendants' personnel files.   


  • September 2012: "Defendants shall produce documents resulting from the elected search terms as they are cleared for review.  Defendants may retain documents that they deem not responsive for further review by the Court."


  • November 2012:  "Defendants shall produce all documents with respect to which there is no privilege question no later than November 30, 2012; Defendants shall produce all non-privileged documents that are in the category of documents they have identified as possibly privileged no later than December 31, 2012. . . ."


  • December 2012: "Plaintiff and Defendants shall meet and confer and submit a new discovery schedule no later than January 7, 2013. . . ."


It seems to me that "Defendants" were ordered to do things much more often than was the plaintiff during this initial phase of document production/e-discovery.  But does that mean plaintiff's document requests were overbroad?  That defendants were recalcitrant?  It is hard to tell.


The question of the application of attorney-client privilege to the documents of defendants and Treasury seems to have occupied more than one year of the litigation.  Plaintiff filed a status report in September 2013 in which she claimed that Fannie Mae's and Treasury's claims of privilege in around 8,000 documents were unjustified.  Defendants' reply was filed under seal, followed by a flurry of responses and counter-responses, all filed under seal as well.  In November 2013, the Court in a minute order "den[ied] Plaintiff's challenges to Defendant Fannie Mae's privilege logs.  Having reviewed the documents for which Defendant Fannie Mae has asserted the attorney-client privilege and the briefs filed by both parties [under seal] related thereto, the Court finds that the privilege was legitimately asserted and the documents are not subject to discovery."  That was it – no further explanation is available to the public, so it is impossible to evaluate what the claims of privilege were based on or why the claims were upheld.  At minimum, the Court's reasoning might have been useful for other litigants involved in cases against federal (or quasi-federal) entities.


The one motion to compel that I saw that could be reliably discerned to have been filed by the Defendants was referred to in a Sealed Order in July 2014.  In it, the Court denied "Defendants' [sealed] Motion for an Independent Medical Examination of Ms. Herron.  See Order for further details" – except that the Order is sealed, so the public cannot obtain the further details.


Through all of this, the discovery deadline had to be extended several times.  Given the years of document discovery, the depositions did not appear to start in earnest until mid-to-late 2014.  The judge was drawn into some unfortunate minutiae regarding the depositions, as evidenced by the following minute orders:


  • November 2014: "Plaintiff may take the deposition of Tim Rood . . . for a maximum of two (2) hours of questioning by Plaintiff.  Consistent with the ruling made during the telephone conference on November 5, 2014, Plaintiff may take the deposition of Ron Rohrbach for a maximum of two (2) hours of questioning by Plaintiff if, after the deposition of Rich McGhee, it appears that there are different recollections. Plaintiff's request to take the deposition of John Bauer is denied."


  • January 2015: "Pursuant to the telephone conference held on January 15, 2015, Plaintiff's request to take the deposition of Ronald Rohrbach is denied; Plaintiff's request to re-open the deposition of Eric Schuppenhauer is denied; there is no need for the Court to further address Eric Schuppenhauer's errata sheet . . ."


  • January 22, 2015: "The deposition of Cindy Gertz shall last no more than 7 hours; the deposition of Phyllis Caldwell shall last no more than 6 hours; the deposition of Laurie Adams shall last no more than 3 hours."  In addition, this order authorized plaintiff to depose the on-again, off-again Mr. Rohrbach.


One can certainly imagine the judge's frustration with having to become involved with discovery details that, thankfully, are usually handled by agreement between counsel.  Just over a week later, Judge Collyer issued the "Order on One Millionth Discovery Dispute."


In that order, the parties were asked to state whether they objected to Judge Collyer's making their letters to the court, which gave rise to and were referenced in the "millionth" order, available on the public docket.  Plaintiff did not object (although she noted that one of her exhibits was subject to the protective order).  Defendants objected on the ground that "each of the Letters contains or refers to information, deposition testimony and documents" that had been designated confidential under the protective order.  Defendants agreed, however, that redacted copies of the Letters could be made available.


Judge Collyer cannot be faulted for a lack of oversight or diligence.  It seems that she promptly responded to the litigants' many concerns and requests. 


However, I find it troubling that one cannot reconstruct what happened here from the public record.  Conspiracy theorists take note: in 2013, Chief Justice John Roberts appointed Judge Collyer to a seven-year term on the Foreign Intelligence Surveillance Court.  Seriously, though, as I mentioned, only part of the secrecy can be blamed on the judge's procedures (letters to chambers followed by a telephone conference).  Rule 5 itself, and the easy granting of protective orders, are also responsible. 


I have heard praise in many quarters for the type of efficient procedure on discovery disputes that Judge Collyer followed in this case.  But is the greater efficiency worth the cost of an information blackout?

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