A Cautionary Tale: Attorney Fees Awarded After Plaintiff’s Failure to Timely Produce ESI

28 Nov 2014

Under FRCP 37(a)(5)(A), if a motion to compel is granted—or if requested discovery is provided after a motion is filed—a court can require the party whose conduct necessitated the motion “to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees.” The Western District of Michigan recently considered this rule in Michigan Millers Mutual Insurance Company (MMMIC) v. Westport Insurance Co., Case No. 1:14-cv-00151-PLM (W.D.Mich. November 7, 2014).

In Michigan Millers, the parties initially attempted to exchange discovery informally. Defendant Westport produced its documents, but received nothing from Plaintiff Michigan Millers.  After receiving no response to its inquiries regarding the discovery, Defendant sent a Rule 34 request for production seeking what the parties had informally agreed upon:  ESI in either native files or as single page TIFF format with load files, sent in digital format to its Chicago office.

After the deadline had passed, Plaintiff sent objections and requested a protective order regarding its document production. The parties agreed to a joint protective order. Almost a month later and still not having received any ESI, Defendant filed a motion to compel. In response, Plaintiff responded that it was waiting for Defendant to schedule an appointment to review the documents at its office.  One day before the hearing, Plaintiff stipulated to providing the electronic data in digital format, and ultimately produced 66,000 pages of documents on three CDs.

Should Defendant receive its attorney fees in this case? The Court said yes, and ordered Plaintiff to pay Defendants’ attorney fees pursuant to FRCP 37(a)(5)(A), noting the following:

  1. Defendant attempted in good faith to resolve the issues informally multiple times.
  2. Plaintiff’s failure to produce was not “substantially justified.”
  3. Plaintiff failed to make timely objections to the document requests, and its letter claiming the data was “available for inspection” rang hollow to the court and was belied by its own request for a protective order.

Rather than award the over $10,000 that Defendant requested, the court calculated its own amount using the attorney time reasonably expended for the motion, and awarded $3,180.72.

Interested in attorney fee awards following a motion to compel? ILS just blogged about a case where a plaintiff won attorney fees pursuant to the corollary of FRCP 37(a)(5)(A), which permits a court to award attorney fees to the party who defeats a motion to compel.  

ILS – Plaintiff Electronic Discovery Experts