The judges' form scheduling orders in D. Del. have deadlines for "substantial completion" of document production. Generally, this deadline is set so that the parties can get most of their documents out and then proceed to depositions.
This tends to be one of the key deadlines in cases, and it often the subject of disputes. We've talked before about how a party cannot withhold a category of documents until after the deadline, and how waiting to produce things until after the deadline can result in exclusion.
Parties typically agree to make "rolling productions" up until that deadline. But, sometimes, the "rolling production" is a trickle, with the bulk of the documents coming just before the deadline—leaving the other side to scramble to review everything in time for depositions.
This week we got some useful precedent from Judge Burke about how that technique is inappropriate, and how parties need to spread their "rolling" production out proportionally:
ORAL ORDER: The Court, having reviewed Plaintiff's discovery dispute motion ("Motion"), (D.I. 73), and the briefing related thereto, (D.I. 70; D.I. 72; D.I. 82), hereby ORDERS that the Motion is GRANTED-IN-PART and DENIED-IN-PART as follows: (1) The Court agrees with Plaintiff that Defendants should make an orderly and proportional production of their ESI discovery, such that they should not be dumping the bulk of those remaining documents on Plaintiff at or near the December 5 substantial completion deadline. But the Court sees that Defendants have begun to move forward with those productions (perhaps spurred by Plaintiff's Motion), and it also agrees with Defendants that it is not in a good position to set an arbitrary number of ESI documents that should be produced each X days on Y dates.; and (2) So the Court will simply order that between now and December 5, Defendants should produce their remaining ESI discovery on a consistent, roughly proportional, rolling basis, such that Plaintiff does not get the bulk of the remaining documents at or near the deadline. Ordered by Judge Christopher J. Burke on 11/6/2023. (mlc) (Entered: 11/06/2023)
State Farm Mutual Automobile Insurance Co. v. Amazon.com, Inc., C.A. No. 22-1447-CJB, D.I. 91 (D. Del. Nov. 6, 2023).
The plaintiff had sought an order compelling the defendant to produce "50,000 documents per week" over the 7 weeks that were then remaining before the substantial completion deadline. The Court rejected that part of the request, possibly because the defendant argued it didn't have all that many documents.
But the order makes clear that the defendant has to roll out what it does have in a "roughly proportional, rolling basis" before the final deadline. Nice!
I've attached the order below so that we can all find it next time this issue comes up in a discovery dispute.
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