How Not to Propound Discovery Requests via Email

March 18, 2014 § 5 Comments

If you’re like me, this entry among the MSSC hand-downs last Thursday had you scratching your head:


Amber Olsen Johnson v. Walter Thomas Johnson; Madison Chancery Court; LC Case #: 2012-0921; Ruling Date: 10/14/2013; Ruling Judge: Janace Goree; Disposition: The Petition for Interlocutory Appeal filed by Petitioner is granted. This matter is remanded to the Madison County Chancery Court for entry of an order denying Respondent’s Motion to Compel in cause no. 2012-0921. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court. The Respondent is taxed with all costs of this appeal. To Grant and Render: Waller, C.J., Dickinson and Randolph, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. To Grant: Coleman, J.; Randolph, P.J., for the Court. Order entered.

An interlocutory appeal is granted and the chancellor is ordered to enter a discovery order. What exactly is going on here?

After I read Jane’s and Anderson’s blog posts on the ruling, it was much clearer.

It seems that the trial court had granted a motion to compel based on a R34 request for production of documents (bank records) that was directed via email to an employee of opposing counsel, and not to opposing counsel herself. Petition was filed for an interlocutory appeal from the order. The MSSC accepted the appeal, dispensed with briefing, and ruled that an email request made by counsel for one party to an employee of counsel for the other party does not meet the notice requirements of MRCP 5 and 34.

Jane includes the transcript of the trial-court proceedings, in which counsel for the party seeking discovery argues that an email request, no matter how informal, complies with the requirements of R34, which only requires a writing. The MSSC did not directly address this particular point.

The two points to take away from this are:

  1. Sometimes we get accustomed to dealing with a particular paralegal or other staff in opposing counsel’s office. Notice to that staff member will not suffice as notice to the attorney under R5 or R34. Here, the missing component was either an automatic electronic acknowledgment of receipt from the attorney, or the attorney’s separate acknowledgment, either of which is required in R5. The acknowledgment of a staff member does not satisfy the express requirement of R5 that it be made by the attorney.  
  2. If you find yourself scratching your head over some hand-down of the appellate courts, it might pay you to take an extra three minutes to look up the order behind it. If you don’t, you might miss something that could impact a future case of yours.

Thanks to both Jane and Anderson for posting on this, and to Beverly Kraft for calling it to my attention.

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§ 5 Responses to How Not to Propound Discovery Requests via Email

  • Judge Doleac says:

    Judge Primeaux – technology is a wonderful thing

    until presumptions are made and one thinks, perhaps,

    actual notice is notice.

    I remember a long time ago, Judge Dale telling me

    never to presume anything. I agree that rules are

    rules and are there for a reason. Thanks for sharing

    this ruling on an interesting question…..

    R. Doleac

    • Larry says:

      That phrase “… one thinks actual notice is notice” reminds me of something out of “Through the Looking Glass.” Curiouser and Curiouser. But, as you say, the rules are the rules, and they are there for a reason.

  • randywallace says:

    An email or 5 asking for documents isn’t a proper RFP, but at the end of the day was it really worth going up on interloc?

    When this case goes back to the trial court it appears the chancellor will recuse and a new chancellor will be assigned. They missed the November trial date. Malouf can request (hopefully via motion rather than email) a new scheduling order and/or subpoena the bank records.

    • Larry says:

      Somewhere along the line, I got the impression that the attorney who filed the appeal had been sanctioned, so I suppose that was the impetus for the appeal. If there were no sanctions, I’m with you.

    • thusbloggedanderson says:

      The best basis I can see for the grant is to clarify the law, but then disposing of the case with an unreported “order” defeats that purpose.

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