• May 14, 2014

When you’re defending an executive (named Grubiak) for allegedly breaching his fiduciary duties to his former employer (Saint Jude Medical) who allegedly jumped ship and joined a direct competitor (Biotronik), can you really take the position that St. Jude’s discovery targeting your client’s contacts with Biotronik about your client’s new job are:

irrelevant, immaterial or not reasonably calculated to lead to the discovery of admissible evidence…unduly burdensome, overly broad, oppressive and/or unlikely to lead to the discovery of admissible evidence…seek[ing] information that is…not within [Grubiak’s] possession custody or control…unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient, less burdensome or less expensive…vague, ambiguous, overly broad and not identified with reasonable particularity?

Really???

To be fair to Grubiak counsel, interrogatories like the one answered above that require litigants to “identify every communication” do seem a little unreasonable. “On December 12, I left a voice-mail. On December 13, I received a voicemail. On December 13, I returned the voicemail.On December 16, we had coffee. X asked after my kid’s hockey game. ..etc etc etc” I can understand preserving objections so that adversaries do not come back later in the litigation and claim “concealed evidence” based on your client’s failure to disclose some communication to some person at some time, which may well be the result of forgetfulness and negligence rather than any conscious or intentional concealment.

But isn’t there a big difference between preserving objections and the strong appearance of stonewalling? At least based on the linked St. Jude Medical brief, it seems that Defendant Grubiak just stiffed Plaintiff, St. Jude Medical in response to St. Jude Medical’s fairly targeted discovery requests.

Could there be a practice pointer here: stonewalling is not generally conduct that judges or juries associate with innocence? One might not want one’s client to come off as a text-book example of obstructionism.

Having said all that, Minnesota Litigator cops to the charge of jumping the gun in this case. It is possible that all will be clarified and made right by Grubiak’s response to St. Jude’s motion to compel (incidentally, I just had a slice of humble pie served to me yesterday (note the first comment to an earlier ML post)). We shall see.

(This motion is set for a hearing before U.S. Mag. Judge Jeffrey J. Keyes (D. Minn.) on May 23. The case is assigned to U.S. District Court Judge Joan N. Ericksen (D. Minn.))

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