by Hon. Sallie Kim and Hon. Thomas Hixson
In the Northern District of California, district judges and magistrate judges often require parties to submit their discovery disputes in the form of letter briefs with specific limitations on the number of pages. Letter briefs have become popular with the Court because they are seen as a more efficient way to resolve discovery disputes than the default five-week briefing and hearing schedule with 25-page briefs that normally applies to motions. However, letter briefs place a premium on making the right arguments in limited space. In the midst of discovery in a busy case, and given all the demands of modern legal practice, it can sometimes be hard for attorneys to find the time needed to write a well-crafted letter brief. Still, it’s obviously essential to do it because what you do or don’t get in discovery, or what you are forced to produce, can have a significant impact on the strength of your claims and defenses, as well as on the expense of litigation. The authors of this article are magistrate judges on the Court, and we offer some pointers for briefing discovery disputes.
1. Tell us what you want
It seems incredible, but sometimes lawyers don’t say what they want from the court. They are so mired in their dispute and complaints about the opposing party and counsel that they forget to ask for specific relief. Some briefs are rants instead of well-reasoned explanations why the other side should produce specified documents or information. A better strategy is to remember that there is a decisionmaker on the receiving end of the letter brief who must decide what to do. Instead of just handing the Court a problem – the other side’s misconduct – propose a solution. Ideally, the first line of the letter brief would state the relief requested and the reason for that request. Think about it this way: if you can’t figure out what you want, how are we supposed to know? In particular, with discovery disputes, the lawyers normally have much more information about the case than we ever will – what documents have and have not been produced, who the custodians are, who’s been deposed, and so on. We’re looking to you to identify what you want because we usually don’t know what you have. Given the space limitations on letter briefs, if you cannot summarize your request in one or two sentences, your request is probably doomed.
2. Include the essential information
Give us what we need to know to rule on your dispute. You should include, as an attachment or as a quote in the brief, the specific request or requests and the response by the opposing party, and cite the specific number of the request(s) at issue. When we review disputes over discovery, we always read the request(s) and response(s). Sometimes the information or discovery that the moving party seeks is not even contained in any specific request, and in other situations, the opposing party has failed to object in the written objections on the basis asserted in the brief. Sometimes the opposing party explains in the written response that the requested documents or information do not exist, and the requesting party completely ignores that written response. The written requests and responses matter.
Also, make sure that the letter brief provides an adequate discussion of the specific requests you want us to address. When your opponent stiffs you on 100 requests for production all at once, it may be tempting to file an angry letter brief denouncing their obstructionist tactics and demanding immediate compliance, but there is no way that the space limitations will allow you to explain why we should compel production of documents responsive to 100 requests. It’s much more effective to break down a major dispute into more digestible pieces.
3. Provide a summary of the case
Federal courts have busy dockets, and each of us touches a large number of cases in any given week. As a result, when you file a discovery letter brief, you should not assume we remember the case or can learn about it quickly. Often we feel as if we are entering a movie halfway through and struggle to catch the plot. If a discovery referral to us takes place a year or two into the case, we may in fact be entering it halfway through. So, tell us what your case is about, or at least the part that’s relevant to your discovery dispute. If there is another order or pleading on the docket that explains the case well, refer to it by docket number. For example, an order on a motion to dismiss or a case management statement usually provides a good summary of facts. We know that lawyers have problems squeezing information into a short letter brief, so referring to other sources is helpful for us.
4. Tell us why you need the evidence
Tell us why the information you want is relevant, and then tell us why it matters. Too many letter briefs skip past this part. If you do that, you force us to guess at a theory of relevance, which may not be what you were thinking. Also, be concrete and lay out what you plan to do with the information you’re seeking. For example, if you’re seeking the defendant’s revenue information, don’t just say it relates to multiple issues in the case, including damages, because that tells us nothing new. Identify the claim that allows you to recover the defendant’s profits related to certain conduct, and then detail how you would use this revenue information to get there. A motion to compel is much more compelling if we have a practical sense of why you need this evidence and what you’re going to do with it. It’s true that lawyers are sometimes reluctant to be that specific for fear of educating their opponent or divulging their trial strategy. Realistically, however, your opponent is far more likely to have already figured this out, and the issue is educating us, the decisionmakers.
5. Don’t wait until the last minute
Judges have common sense, and we think you do too. If there is something you really need to prove your case, we assume you will ask for it right away, and if the other side doesn’t agree to give it to you, you will promptly meet and confer with them and then raise this issue with the court. Even if you technically have the ability to ask the court to order the opposing party to produce information or documents at the last minute, don’t do that. For example, under our district’s local rules, parties may file motions regarding discovery (normally in the form of a discovery letter brief) up to seven days after the discovery cutoff, but filing a request that late might hurt your chances of getting a favorable ruling. First, raising a discovery dispute on the very last day to do so sends a message that this is the stuff you didn’t care about enough to seek earlier. If you actually wanted to use these documents in depositions, you obviously wouldn’t have waited until the last possible day to seek help from the court. Second, a late-breaking motion to compel that raises more than minimal issues can present scheduling concerns. If we grant the request and order production or additional responses, that could affect the schedule for dispositive motions or trial. If we as magistrate judges are handling discovery for a district judge, we must learn whether compelling further discovery will create a problem for the district judge. If you worry that you are filing too soon, let us know that you are filing earlier rather than later to give us notice that there are disputes about discovery that might affect the timing of other motions or trial. We can always send you back to meet and confer further, but we will be aware at least of the issue and can plan accordingly.
6. Tell us when you need the evidence
If you need the documents or information by a certain time frame, explain why and show that you were diligent in raising this dispute. Setting production deadlines often isn’t necessary and can sometimes be undesirable, so you need to tell us when you need a deadline. For example, if it’s early in the case and you have a dispute about whether a certain subject is relevant, but the parties are still in the process of negotiating who the document custodians will be, setting a production deadline at the same time the Court rules on the relevance objection would likely not make sense. But if you have a schedule for upcoming depositions, then you might need a production deadline. You will know these background facts much better than we will. Conversely, if we rule against you and order you to provide additional responses, documents, or a witness for deposition, you should be prepared at the hearing to say how long you need to comply.
7. Discuss proportionality
If you are asking for something, try your best to explain why it’s not that hard for the other side to produce it. We know you’re at a disadvantage because you have limited information about how your opponent stores documents and information, but through the Rule 26(f) conference, meet-and-confers, and early depositions, you may learn enough that you can say something credible on this score.
Conversely, if you’re opposing the request, explain what is easy and what is hard for you to do and give specific information. How many people-hours will it take to produce the requested information or documents? Have you talked to your IT experts or conducted a sampling to bolster your claim of burden? Is some of the requested information in a database and you could run a query and find it easily, but the rest requires time-intensive manual review? Often we will ask during a hearing if parties can produce some information even if they cannot produce all of the requested information, and often the parties agree to the limited scope of production.
8. Follow the rules
Read the standing order of the judge assigned to this dispute. For example, in our district, all
magistrate judges require discovery disputes to be raised in letter briefs, and none of us allows motions. Some of our standing orders require lawyers to meet and confer in person or by telephone; communicating in writing is not sufficient to satisfy the requirement of meeting and conferring. If you hand us a poorly formed discovery dispute that doesn’t satisfy our rules, we may hand it right back to you and tell you to sharpen your pencil.
Each judge has an order outlining the number of pages for the letter brief and how to handle attachments. All of the orders are different, but most give fewer than 10 pages for a joint letter brief.
Some judges also allow informal discovery conferences without letter briefs, and the order will also address that issue.
9. Ask for hearing
If the matter is complicated, don’t be afraid to ask for or volunteer for a telephone hearing or actual hearing. We often call them when we want to ask questions. And if you participate in a hearing by telephone, make sure we can hear you loudly and clearly. Even though you are not physically present, you should be mentally present. We have held hearings where lawyers have called in while driving or getting in an elevator or multi-tasking, and it is clear that there are distractions that make the argument ineffective.
10. Don’t whine about things that don’t matter
Often the letter briefs we receive catalogue a long list of supposedly evil acts opposing counsel committed, and those actions have nothing to do with the dispute at issue. (And sometimes the acts weren’t evil.) If you think that you can sway us with your recitation of wrongdoing, you are sadly mistaken.
In conclusion, we hope that these pointers help you to file successful, succinct letter briefs.
Hon. Sallie Kim and Hon. Thomas Hixson are U.S. Magistrate Judges for the Northern District of California, both with chambers in San Francisco.