eDiscovery Daily Blog

Court Awards Attorney Fees to Defendant After Delayed Production by Plaintiff: eDiscovery Case Law

In Michigan Millers Mutual Insurance Co. v. Westport Insurance Corp., 1:14-cv-00151 (USDC W.D. Mich. Nov. 7, 2014), Michigan Magistrate Judge Phillip J. Green awarded some (but not all) of the attorney fees requested by the defendant after the plaintiff “made repeated promises to produce the subject documents”, but “failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request” and “compliance was obtained only after Westport filed its motion to compel”.

Case Summary

In the reinsurance dispute described by the judge as a “document-intensive case”, the parties filed a Joint Status Report on May 7, 2014 in which they agreed “to make available” by May 28, certain identified documents without the need of a formal request for production. The deadline for voluntary production was extended at the plaintiff’s request to June 4 and the defendant completed its voluntary production of documents on that date. However, the plaintiff failed to do so.

The defendant sent the plaintiff inquiries as to the status of its production on June 10, 12 and 16. After receiving no response, on June 17, the defendant served a Rule 34 request for a production of documents, including those identified by the plaintiff for voluntary disclosure. The Rule 34 request incorporated the parties’ previous agreement to produce electronic documents in single page TIFF format with DII load file or native format within their original file structure. The defendant sent a reminder to the plaintiff on July 11 of their agreement to voluntarily produce the documents identified in the Joint Status Report and “specifically asked MMMIC’s counsel to advise if that understanding was incorrect”, which the plaintiff apparently never did.

The parties agreed to give the plaintiff an additional 14 days to produce responsive documents and, on August 1, the plaintiff responded to the Rule 34 request, indicating that “many documents [were] ready for production,” but also requested a protective order to prevent dissemination of the documents to persons not involved in the case. On August 6, the parties filed a joint proposed protective order regarding the handling of “Discovery Material”, but reminders from the defendant to the plaintiff to produce documents on August 6, 11 and 14 received no reply from the plaintiff, so on August 25, the defendant filed a motion to compel. After further back and forth, the parties agreed to an order on October 2, which noted that the production would be made no later than October 10. On October 13, the plaintiff finally produced 66,000 pages of documents in electronic format on three CDs.

Judge’s Decision

Judge Green stated that “MMMIC made repeated promises to produce the subject documents, beginning with the May 7, 2014, Joint Status Report, but it failed to do so for nearly three months after the deadline for responding to Westport’s Rule 34 request, and more than four months after the deadline for voluntary production set by the Court in the Case Management Order. Even then, compliance was obtained only after Westport filed its motion to compel, and on the eve of the scheduled hearing.

That constitutes a sufficient basis for awarding reasonable attorney’s fees and expenses to Westport.”

The defendant sought $10,399.75 in attorney’s fees and expenses under Rule 37(a)(5)(A), but Judge Green, after a detailed review of the hours expended (and factoring in a 7.5% discount), awarded $3,180.72.

So, what do you think? Should the fees have been awarded for the plaintiff’s late production? Please share any comments you might have or if you’d like to know more about a particular topic.

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