eDiscovery Daily Blog
Defendant Requests Terminating Sanctions for Plaintiff, but Court Opts for Lesser Sanctions: eDiscovery Case Law
In Applied Underwriters, Inc. v. American Employer Group, No. 14-00379 (E.D. Tenn., May 2, 2016), Tennessee Magistrate Judge C. Clifford Shirley, Jr., ruling on several motions, granted in part and denied in part the defendant’s motion for sanctions, agreeing that the plaintiff’s numerous discovery deficiencies warranted sanctions, but not the dismissal that the defendant requested, opting instead to require the plaintiff to pay attorney’s fees for filing the motion.
In this case which involved numerous discovery disputes, the defendant asserted that the plaintiff failed to comply with the Court’s discovery Orders, failed to follow the procedures set forth in the parties’ discovery plan, failed to follow the directives of the Court’s Protective Order, failed to follow the requirements of the Federal Rules of Civil Procedure, and failed to confer in good faith about discovery issues, arguing that the plaintiff produced a classic “document dump” when it produced its ESI. At a hearing regarding the case, the defendant identified eleven deficiencies with the plaintiff’s production, including:
- failing to search for the agreed upon terms in creating the collective universe;
- failing to search the computer systems of several individuals that were agreed upon;
- failing to review the documents before producing;
- producing the documents out of order, without attachments, and without proper load files;
- failing to apply proper Bates stamps to some of the ESI;
- producing all four million pages with the “Attorney Eyes Only” designation;
- failing to produce the ESI in the format indicated in the parties agreement pursuant to the Rule 26(f) Report;
- submitting the document production without extracted OCR text and load files;
- producing ESI duplicative of that produced in previous discovery;
- producing “a number of folders, sub-folders, and sub-sub level folders with file names that do not make sense”; and
- not providing a spreadsheet to explain which documents are relevant to which request contrary to the parties’ agreement.
Other than that, the plaintiff’s document production was perfect… :o)
The defendant requested that the Court dismiss the lawsuit, or in the alternative, stay the case until the plaintiff obeyed the Court’s Orders and fully complied with its discovery obligations, also requesting an award to compensate it for the fees and costs it incurred in responding to and overcoming the Plaintiff’s discovery misconduct and its fees and costs associated with re-taking depositions.
Regarding the plaintiff’s production after they asked for additional time to produce the ESI requested, Judge Shirley stated that “contrary to the parties’ agreement and the Court’s Order, the Plaintiff did not perform the additional searches per the protocols discussed, i.e., performing searches on specifically named individuals’ computers. Moreover, when the March 8 discovery was produced, it was contrary to the plan set forth in the Rule 26(f) Report, it was unorganized, it failed to identify which document request it was answering, and it was all produced “Attorney’s Eyes Only.” Accordingly, the Court finds that sanctions are appropriate.”
However, Judge Shirley stopped short of ordering the harsh sanction of dismissal, stating “[w]hile the Court finds that sanctions are appropriate, the Court does not find that Plaintiff’s deficiencies warrant dismissal…As discussed at the hearing, instead of dismissal, the Court finds that the Plaintiff shall pay for the reasonable attorney’s fees and costs associated with the Defendant’s Motion for Sanctions, including the other Motions and filings that relate to the Plaintiff’s discovery deficiencies.” Judge Shirley also ordered the plaintiff to pay “for the reasonable expenses, not to include attorney’s fees, for retaking” several depositions, including the plaintiff’s Rule 30(b)(6) witness’s depositions.
So, what do you think? Were those sanctions sufficient? How does Judge Shirley respond when somebody tells him “surely, you can’t be serious”? (Seriously, I want to know). Please share any comments you might have or if you’d like to know more about a particular topic.
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