Attorney Fee Sanction Against Plaintiffs for Failing to Produce Documents, Metadata
In The Hawk Mountain, LLC et. al. v. Mirra, et. al., Case No. 13-2083 (D. Delaware, June 3, 2016), Plaintiffs subpoenaed a third party, McCaffrey, to obtain documents with respect to her alleged 2010 correspondence with Defendants, which correspondence related to issues in the case. No party or third party objected to the scope of the subpoena. McCaffrey produced responsive documents in two batches. Plaintiffs had also entered into an agreement with Defendants related to the McCaffrey subpoena, where Plaintiffs agreed to produce McCaffrey’s documents to Defendants by a date certain, after having the opportunity to review the documents for privilege.
When Plaintiffs made a partial production, they did not include data load files, which resulted in production being improperly paginated and without metadata. Defendants demanded a further complete production, but Plaintiffs responded that further review was required. At a discovery hearing, the court ordered Plaintiffs to make the supplemental production by November 6, 2015.
However, as of that date, Plaintiffs failed to produce several thousand documents and failed to produce the data load files. At a further discovery hearing, Defendants requested sanctions, and Plaintiffs indicated that they had produced every document from McCaffrey and that any missing Bates numbers were because Plaintiffs did not have such documents. The court ordered production within a week. Thereafter, McCaffrey confirmed the number of documents produced and Plaintiffs acknowledged “various oversights” in the production. They produced additional documents.
The court reviewed FRCP 37(b)(2) to determine whether sanctions were appropriate, noting that courts have broad discretion regarding types of sanctions as long as the sanctions “are just and are related to the claims at issue.” The court granted the sanctions motion based upon Plaintiffs’ failure to comply with previous discovery orders. The court determined that attorneys’ fees and costs to Defendants was a justified sanction; Plaintiffs should have been able to detect their discovery deficiencies and correct them, but they failed to do so.