Say what you mean and mean what you say

By Karen Federman Henry

Energetic discovery disputes during litigation occur frequently, frustrating the parties, their attorneys, and the judges who rule on the disputes along the way.  When the violations are exceptionally egregious, sanctions may be imposed ranging from new deadlines for compliance to dismissal of the lawsuit in its entirety.  Recently, the Court of Special Appeals reversed the trial court’s dismissal of a case based on perceived discovery violations in Colvin v. Eaton Corp., No. CSA-REG-2103-2016 (Oct. 4, 2019).  The reversal reflected the importance of clear communication, both in the details of a discovery order and from the attorneys representing a party when there are changes during litigation.

The dispute arose from a wrongful death and survivor action filed by Ms. Colvin regarding her husband’s death as a result of complications from mesothelioma.  Due to multiple sources of Mr. Colvin’s exposure to asbestos, the lawsuit involved several defendant companies, including Eaton Corp.  Among numerous scheduling orders, plaintiffs were directed to produce and regularly supplement all claim forms and exposure affidavits or statements submitted to any bankruptcy entity or trust.  In addition, a deadline was set for deposing “plaintiffs’ fact witnesses who plaintiffs are able to voluntarily produce for deposition without subpoena by defendants” and a separate deadline for “deposition of plaintiffs’ fact witnesses who plaintiffs are unable to voluntarily produce for deposition without subpoena by defendants.”  The quoted language appeared in subsequent scheduling orders without change.

Ms. Colvin provided three fact witnesses voluntarily without the need for subpoenas.  Afterward, documents were produced that triggered a need for the defendants to re-depose the same three witnesses.  By then, the fact witnesses were not willing to appear voluntarily.  From the defendants’ perspective they were able to depose the witnesses without a subpoena and viewed the scheduling order as requiring the plaintiff to provide the witnesses voluntarily or involuntarily.  During the defendants’ efforts to enforce their interpretation of the scheduling order, Ms. Colvin’s attorney was replaced several times, further delaying the ability of the defendants to re-depose the three fact witnesses.  In fact, the change in attorneys left at least one discovery motion unanswered, which further aggravated the defendants and the court.  Also, the discovery deadline passed without the renewed depositions occurring.  Meanwhile, plaintiff asserted that she did not have the ability to produce the witnesses without a subpoena and that the defendants should issue a subpoena for any witness not appearing voluntarily.  The trial court shared the defendants’ frustration and dismissed the case as a sanction for what the court considered to be a discovery violation.

The Court of Special Appeals viewed the scheduling order as setting separate deadlines for depositions not requiring a subpoena and those requiring one, untangling the otherwise ambiguous language in the scheduling order.  By reversing and remanding the case, the appellate court recognized the reasonable interpretation of the scheduling order by the plaintiffs, while giving the defendants the opportunity to seek the repeat depositions through a new scheduling order.