In Johnson, et al. v. Italian Shoemakers, Inc., No. 3:17-cv-00740-FDW-DSC (W.D. N.C. Oct. 22, 2018), the United States District Court for the Western District of North Carolina affirmed the magistrate judge’s Memorandum and Recommendation and granted defendant’s motion for sanctions against Plaintiffs for their failure to comply with a discovery order.
In the Memorandum and Recommendation, the Magistrate Judge determined that Plaintiffs disobeyed an order that directed Plaintiffs to produce complete responses without objection to Defendant’s Request for Production and to produce all documents in the manner in which they are maintained in the usual course of business or by labeling each document to correspond with the applicable request.
To satisfy the requirements of production of ESI under Rule 34, a party is required to (1) “produce documents as they are kept in the usual course of business or must label them to correspond to the categories in the requests,” Fed.R.Civ.P.34(b)(2)(E)(i), and (2) produce documents, if a request does not specify a form of producing ESI, “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms,” Fed.R.Civ.P. 34(b)(2)(E)(ii).
In ruling on the motion, the court addressed Plaintiffs argument that it had, in fact, produced all responsive documents at issue in the Court’s August 9, 2018 order. In rejecting this argument, the court stated that Plaintiffs’ production was non-compliant because Plaintiffs’ production contained numerous e-mails in PDF format rather than the ESI format in which e-mails are kept in the ordinary course of business. Further, the court noted that Plaintiffs’ deficient production occurred after the court’s discovery deadline.
Turning to the issue of sanctions, Rule 37(b)(2)(A) provides that an award of sanctions is appropriate where a party fails to comply with an order compelling it to answer discovery. Here, the court held that Plaintiffs failed to comply with the court’s August 9, 2019 order that the plaintiffs (1) produce complete responses without objection to each discovery request; (2) produce all responsive documents in the manner in which they are maintained in the usual course of business; and (3) within five days of the Order. According to the court, Plaintiffs continued production of emails in PDF format directly violated the court’s order. Consequently, the court ordered Plaintiff to pay Defendant’s reasonable expenses, including attorney’s fees, relating to the Motion to Compel, Motion for Sanctions, and any ongoing attorney fees related to Plaintiffs’ discovery failures.