Fed.R.Civ.Pro. 37(e) provides that “if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or harmless.” The court considered this rule in light of the late and supplemental defense productions in the employment law case Didier v. Abbott Laboratories, Case No. 13-2046-JWL (D. Kan. January 21, 2014).
Defendant tendered its ESI discovery production to Plaintiff, and later, after some oral depositions were taken, supplemented the production with documents and emails. Plaintiff alleged that the additional information provided after the oral depositions of two Defendant custodians justified sanctions under Rule 37(e). Plaintiff requested that the court disallow Defendant from using any documents produced after the deposition to support its defenses or oppose Plaintiff’s claims, along with additional sanctions for the alleged defense spoliation.
The court, however, believed that the supplemental discovery production responses were substantially justified and harmless. The court recognized and appreciated Plaintiff’s frustration, but simply did not believe the facts of the case justified the harsh sanctions requested. There was nothing the court found that demonstrated the delay in production was willful, knowing or in bad faith.
The court did enter one issue favorably in response to Plaintiff’s Motion to Compel. One custodian produced eight emails after her deposition and the court recognized that Defendant was aware that such emails existed but failed to produce the email threads prior to the deposition. Claiming the proposed sanctions were too drastic to be appropriate at such time, the court ordered Defendant to produce the custodian for an additional oral deposition regarding the supplemental email threads.