• December 19, 2014
Julie Andrews Still Photo From The Sound of Music

Julie Andrews Still Photo From The Sound of Music

Rather than saying, “your response to this discovery is due in 30 days,” why don’t our court rules require the proponent of discovery to identify a date certain: “Your response to this discovery is due on or before January 18, 2015” (that is, requiring the identification of a specific date (30 days, more or less, from the date of service))?

This would have the benefit of clarity, specificity, and lawyers would not waste time, money, and life-meaning, fighting about what “within 30 days after being served” means.

The rule could provide that a 30-day response time is presumptively reasonable absent a court order or stipulation providing for a greater or smaller amount of time. The rule could provide that the receiving party could object to the specified response date as unreasonable within 7 days of receipt if the receiving party took the position that the designated response time was unreasonable, after which the propounding party could have 7 days to amend the identified deadline if the propounding party thought the receiving party’s position had merit.

If that were the way that civil discovery was served, we would not have preposterous “day-counting squabbles:” the subject of Volume 6 of Minnesota Litigator’s toungue-in-cheek TAAFOMFT series (“These are a few of my favorite things”).

In Arctic Cat v. Bombardier, the court ordered that discovery should proceed in order “to be completed by September 1, 2014.” So plaintiff served discovery (requests for admission) on August 1, 2014, calling for a response within 30 days. This would mean a deadline of August 31 to most people. But that’s a Sunday. Since, under the rules, you cannot have a deadline on a Sunday and since Labor Day was on following Monday, Bombardier took the position that the discovery was not due until September 2. As such, the discovery could not be completed by September 1, so, Bombardier argued (unsuccessfully), that it did not have to answer the discovery.

My proposed rule amendment would presumably not have solved the fight in Arctic Cat v. Bombardier. I suppose Arctic Cat would have put the date of August 30, 2104, the last weekday before the court’s “discovery to be completed by” date. I suppose that Bombardier would have objected that this was unreasonable and was not thirty days. Arctic Cat would agree to move the deadline to Sept. 2. Bombardier would argue that this violated the court’s scheduling order…

But, in most cases, would it not be great if people would agree on a date up-front and not waste court time and money fighting over day-counting? Indeed, most lawyers in most cases do not engage in this silliness. Some lawyers in some cases, however, cannot seem to get enough of it.

Not included in (D. Minn.) U.S. District Judge John R. Tunheim’s careful analysis of the Magistrate Judge Brisbois’ reasoning and discussion of Rule 6 of the Federal Rules of Civil Procedure (“Computing Time”) is any thought to just how onerous were Arctic Cat’s Requests for Admission? How many were there? How much time would they save the parties at trial? Were they a half dozen generic “authentication” requests (“admit that Exhibit 1, attached hereto, is a true and correct copy of the patent-in-issue”) or were they 38 detailed, argumentative, vague, hard-to-answer with a “yes” or a “no” requests? (Check out Req. Nos. 50-51. Don’t you have to believe that the receiving party might have an “neither admit nor deny” response to such requests (kind of like the “it’s complicated” option for “relationship status” on some social media)?)

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