Aldinger v. Alden State Bank is a good reminder of counsel’s obligation to be cooperative in the discovery process.

Aldinger, an employment discrimination case pending in the United States District Court for the Western District of New York, involved a series of discovery disputes including Plaintiff’s motion to compel Defendant to respond to her First Request for the Production of Documents and First Set of Interrogatories (Docket 21).  A second similar motion was filed four months later (Docket 31), which the Court eventually granted, directing Defendant to fully respond to Plaintiff’s interrogatories and requests for production (“Order”) (Docket 32).  Thereafter, Defendant sought to depose Plaintiff and sent her several letters requesting dates for a deposition.

Plaintiff, however, unsatisfied with Defendant’s disclosure pursuant to the Court’s Order, refused to schedule depositions until Defendant fully complied with its discovery obligations.  Frustrated with Plaintiff’s refusal, Defendant moved for an order compelling Plaintiff’s deposition.  And, Plaintiff cross-moved to compel Defendant to comply with the Court’s prior Order.

The Motions to Compel:

In deciding the two motions to compel, the Court reminded counsel of their obligation to engage one another in good faith and to act cooperatively during discovery.  First, the Court directed the parties had thirty days to agree on a date certain for Plaintiff’s deposition and concluded that even if Plaintiff was correct in alleging Defendant failed to comply with the Order, Plaintiff “cannot unilaterally refuse to fulfill its discovery obligations as retaliation for another party’s discovery violations.” (quoting John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 145, 148 [S.D.N.Y. 2014]).

Second, in resolving Plaintiff’s cross-motion to compel the Court was guided by the principles set forth in Federal Rule of Civil Procedure 26(b)(1) regarding relevance and one’s obligation to produce not only documents in their physical possession, but also documents the party has the “right, authority, or practical ability to obtain,…including from…former outside counsel” (quoting  Woodward v Holtzman, 16 cv 1023A(F), 2018, WL 5112406, at *8 [WDNY October 18, 2018]).  The Court further concluded that if any documents requested by Plaintiff do not exist, then Defendant is required to make “a direct, individualized response” stating that to be the case.

Having granted both motions, the Court refused to grant either party’s request for attorneys’ fees.  Although the Court observed that Rule 37 obligated the Court to require a party who failed to provide information in discovery to “pay the reasonable expenses, including attorney’s fees, caused by the failure…” the Court concluded “[b]oth attorneys in this case have failed to be cooperative in the discovery process.”  The Court went on to conclude it was their collective “absence of good faith and collegial understanding of one another’s discovery needs” that has greatly increased  “the duration and expense of this litigation.”  In conclusion, the Court “warned” the parties that the “next discovery dispute will be resolved in a court hearing at which both parties and their attorneys will be present.”


This decision serves as a good reminder that courts expect parties and counsel to proceed cooperatively and professionally during discovery, with an emphasis on good faith and efficiency.  As attorneys, we should strive to be known as one who resolves discovery issues rather than one who creates unnecessarily discovery issues.