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Blumenthal v. Drudge

April 22, 1999


The opinion of the court was delivered by: Paul L. Friedman, United States District Judge


The Court has before it ripe motions to compel discovery from both parties. Defendant first filed a motion to compel plaintiffs to respond fully to three categories of defense discovery requests: (1) all of defendant's interrogatories and requests for production of documents to which plaintiffs objected out of time, (2) defendant's request for plaintiff Sidney Blumenthal's notes of his conversations with David Brock and several other journalists, and (3) a number of questions that Mr. Blumenthal refused to answer at his deposition on grounds of executive privilege. Defendant also requested that the Court impose monetary sanctions on plaintiffs and their counsel under Rule 37 of the Federal Rules of Civil Procedure for engaging in improper conduct requiring the litigation of this discovery dispute. Plaintiffs responded that (1) they did not waive their objections to defendant's written discovery requests by responding late, (2) Mr. Blumenthal's notes are protected as attorney-client communications or attorney work product, and (3) some of Mr. Blumenthal's answers to the deposition questions would be protected by executive privilege.

Plaintiffs then moved to compel defendant to respond to a number of their interrogatories and document requests. Specifically, plaintiffs requested the Court to compel defendant to respond to (1) a number of interrogatories and requests for production of documents that appear to have been shared with third parties who are not lawyers for which defendant nevertheless asserted the attorney-client privilege, (2) interrogatories and document requests regarding defendant's sources of information about plaintiffs, and (3) interrogatories and document requests regarding the membership of defendant's legal defense fund. Defendant responded that (1) the third party with whom information was shared is a litigation consultant, (2) information about defendant's journalistic sources is protected under the California Constitution and the First Amendment, and (3) plaintiffs' request for the membership of defendant's legal defense fund is irrelevant and violates the First Amendment rights of the fund members. *fn1


The circumstances from which this action arose were fully described in the Court's Opinion of April 22, 1998. See Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). In general, plaintiffs allege that defendant Matt Drudge published defamatory material about them on his world wide web site, the "Drudge Report." Plaintiffs originally filed suit against both Mr. Drudge and his internet service provider, America Online, Inc. ("AOL"). The Court granted summary judgment in favor of AOL, finding that AOL was immune from suit under the Communications Decency Act of 1996. Id. at 49-53. In the same Opinion, the Court held that it had personal jurisdiction over Mr. Drudge and ordered the matter to proceed to discovery. See id. at 53-58.

Once discovery began, the parties and their lawyers quickly devolved to the kind of conduct that rightly gives the legal profession a bad name. The papers filed by lawyers on both sides, and the correspondence and deposition excerpts that accompany them, are replete with examples of rudeness, childish bickering, name-calling, personal attacks, petty arguments and allegations of stonewalling and badgering of witnesses. There is such mistrust and suspicion that counsel refuse even to talk to each other on the telephone to attempt to resolve discovery disputes. *fn2 While the Court is not at this stage inclined to waste its time resolving these matters and declines defendant's request for the imposition of sanctions on this occasion, it reminds counsel of a few rudimentary principles.

First, if Mr. Blumenthal is "a very busy man, involved in many high stakes matters that require constant attention" and Mrs. Blumenthal also is "busy in her job," see Plaintiffs' Opposition at 8, perhaps they are too busy to be plaintiffs in this lawsuit. Plaintiffs brought this lawsuit and thereby voluntarily subjected themselves to the discovery process, which by its nature is not always pleasant and not always compatible with one's personal or business travel schedules or professional obligations. If plaintiffs are too busy for discovery, they are free to drop their lawsuit. The choice is theirs.

Second, defendant is reminded that not all subjects are relevant to the claims brought against him or the legitimate defenses he might raise in this lawsuit. See Rule 26(b)(1), Fed. R. Civ. P. Nor is the exploration of such wide-ranging subjects likely to lead to the discovery of admissible evidence. Id. This Court cannot fathom, for example, why defendant and his counsel believe it is appropriate to ask plaintiffs questions about Geraldo Rivera, Henry Hyde, Robert Dole, the emotional state or alleged extra-marital relationships of various public figures, grand jury subpoenas, the "vast right wing conspiracy," or the address of the parents of the girlfriend of a particular reporter. There are limits under the Federal Rules of Civil Procedure, as well as limits set by both common sense and common decency. The purpose of the court system is to resolve civil disputes -- and in a civil way. Litigation is not just another arrow in the quiver of those with a political agenda or who are practitioners of the "gotcha" mentality of some journalists and purveyors of infotainment.

Third, counsel are reminded that they -- not their clients -- have a professional obligation to control the means and methods used to achieve the goals of this litigation and that they must act as professionals even if that requires them to tell their clients that certain tactics are beyond the pale. See D.C. RULES OF PROFESSIONAL CONDUCT, Rule 1.2 (1996). Lawyers are not to reflect in their conduct, attitude or demeanor their clients' ill feelings toward other parties and may not "even if called upon by a client to do so, engage in offensive conduct directed towards other participants in the legal process," or "bring the profession into disrepute by . . . making ad hominem attacks . . . ." D.C. BAR VOLUNTARY STANDARDS FOR CIVILITY IN PROFESSIONAL CONDUCT ¶¶ 3, 15 (1997); see AMERICAN BAR ASSOCIATION, GUIDELINES FOR LITIGATION CONDUCT ¶¶ 2, 4, 10, 14, 20, 22, 24, 26, 27 (1998).

Finally, both the Federal Rules of Civil Procedure and the disciplinary rules of this Court provide for sanctions and discipline which the Court will not hesitate to invoke as this lawsuit proceeds. See Rule 11, Fed. R. Civ. P.; Local Rules 703, 706, 707. Counsel who have been admitted pro hac vice are also reminded that their continued participation is subject to the discretion of the Court. See Local Rule 104(d).


A. Defendant's Written Discovery Requests

Defendant first argues that plaintiffs waived all objections to his written discovery requests by serving their responses after they were due. *fn3 While "[a]ny ground not stated in a timely objection [to an interrogatory] is waived unless the party's failure to object is excused by the court for good cause shown," Rule 33(b)(4), Fed. R. Civ. P., the rule by its terms gives the Court discretion to excuse the failure. The same principle applies to written document requests under Rule 34(b) of the Federal Rules of Civil Procedure. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992); see 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2176 (1994) (courts have "broad discretion" to determine waiver). It is undisputed that plaintiffs submitted their responses late -- either five or nine days after they were due, depending on whether one accepts plaintiffs' or defendant's representation as to when they were served. It is also clear that plaintiffs' counsel never filed a motion seeking an extension of time.

Discovery deadlines are intended to ensure the efficient progress of a lawsuit and counsel are expected to comply with them. If plaintiffs' counsel were not able to meet a discovery deadline, they should have sought an agreement with defendant's lawyer to submit their responses at a later date. See Local Rule 108(m). If such consent was not provided by counsel as a professional courtesy, plaintiffs' counsel should then have sought an extension of time from the Court by motion. See Rule 6(b)(1), Fed. R. Civ. P. Plaintiffs' counsel's assertion that it believed "it would be a much better use of counsel's time to prepare the discovery responses rather than take time out to prepare a motion for extension of time," Plaintiffs' Opposition at 8, is an unacceptable response and certainly does not constitute "good cause." While the Court likely would have granted a motion for an extension of time had such a request been made in advance of the due date, counsel was required by the Rules to make the request in writing and have it granted before acting contrary to the discovery deadlines. Counsel is expected to do so in the future. Nonetheless, in the exercise of its broad discretion, the Court finds that plaintiffs have not ...

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