A recent New Jersey federal court ruling suggests that the next best thing to producing discovery your opponent requested from you, is being forthcoming about why you did not produce discovery.

 In Geico v. Zuberi, et al., Geico sued a group of outpatient care facilities and their ringleaders in an alleged kickback scheme, where Geico was billed about $800,000 for medically unnecessary radiology services provided to car accident victims Geico insured. In a related criminal proceeding against the defendants stemming from similar allegations with respect to Medicaid, the government confiscated the defendants’ electronic devices. The defendants claimed that the confiscated electronics contained all relevant discovery materials in the civil case brought by Geico, and for that reason, completely avoided producing any substantive discovery responses to Geico’s discovery demands. Even after Geico obtained court orders compelling the defendants to produce discovery, the defendants still did not comply, citing the same reason for noncompliance – the government took their materials.

 Geico sought relief from the court to enforce the prior discovery orders and the defendants’ position remained unchanged. The court was unpersuaded that the government took the only versions of relevant documents and that there was no other way to obtain these documents. The court suggested that in this circumstance, the defendants had a duty to make efforts to obtain relevant discovery documents from other sources, such as their banks or accountants. In ruling on Geico’s motion, the court then: (1) struck the defendant’s pleadings; and (2) required the defendants to provide affidavits from third parties explaining why each requested document was unavailable.

 This case demonstrates that, in the court’s eyes, good faith efforts to obtain discovery can be more important than the result.

Thanks to Rachel Freedman for her contribution to this post.