It has been said that genius is the ability to reduce the complicated to the simple. The title of this article is an actual quote from Magistrate Judge Jonathan Goodman in a recent Florida Southern District Court Federal Order. It is not everyday that Judges disclose to us where they find their inspiration, and given the Judge’s musical reference in this order, I could not pass up the opportunity to share it. It is also not everyday that Federal Judges look to Meat Loaf to inspire the creative analogy.

The order involved a lengthy discussion and analysis into a discovery dispute between the parties. The simple theme being that the insurer attempted to “jump the gun” by askimg the Court to dismiss the case and preclude the policyholder from ever being able to bring the case again as a sanction for incomplete discovery responses the policyholder filed. Kendall Lakes Towers Condo. Association, Inc. v. Pacific Ins. Co., Ltd., 2011 WL 6190160 (S.D. Fla. December 2, 2011).

The purpose of discovery in litigation is generally to exchange information each party claims supports its case. Professional conduct and courtesy are a couple of underlying themes in the procedural rules in guiding the discovery process. Discovery disputes do occur in cases, and the procedural rules provide a mechanism for the parties to deal with disputes that might arise over incomplete answers, objections and refusals to provide information and responses. The insurer asked the Court dismiss the case.

The case involved an insurance coverage dispute arising out of damages to the condominium association’s property caused by Hurricane Wilma. Discovery closed as of October 14, 2011, and one week later, the insurer filed the motion asking the Court to dismiss the case as a result of the policyholder’s alleged discovery violations. Before filing that motion seeking the harshest of sanctions, the insurer never sought Court intervention in the discovery process. The insurer did not file a motion to compel or otherwise bring the alleged discovery failures to the Court’s attention before filing the motion to dismiss. The Court called this an “unusual strategy” to first bring the alleged discovery violation to “by requesting the most extreme sanction available.” The Court noted that such practice “may run afoul of the Local Rules” in the Southern District, and stated that “[a]s a matter of general practice, [ ] it is generally inadvisable to request the most extreme relief available even if it is technically permitted by the governing procedural rules.”

According to the Court, when the parties follow the established avenues for obtaining discovery relief, it often prevents the need to later file a sanctions motion. Under the Rules, the parties are required to confer in good faith about any disputes in the discovery process. If they cannot agree after their conference, then a court may intervene and enter an order resolving the dispute. If the offending party still refuses to comply, then a court can determine whether the party has acted in bad faith and whether more severe sanctions are necessary.

Since the insurer in this case did not follow this approach, in the Court’s view, the defense strategy behind this motion to dismiss “put the cart before the horse and short-circuited the discovery and sanctions process.” All in all, the Court described the dispute between the parties a “comparatively modest discovery failure.”

Parties and their counsel will not always agree on every point, but it is clear using the facts of this case as an example, that simple communication before seeking judicial involvement in discovery disputes is encouraged and may prevent the need for judicial involvement in those tangential issues. While I enjoyed reading such a creatively written discovery order, it may not have been necessary had counsel for the parties followed the procedural approach in the Rules. The order nonetheless is inspiring, and it also reveals that there is a place for creative writing in the law, even in discussion of civil procedural rules.

Heaven blesses those who wait, patience is a virtue, son
Keep your toe on the line, keep your foot on the brake
No sense jumpin’ the gun