Court Imposes $150 Daily Monetary Sanction Due to Plaintiff’s Failure to Produce ESI
In Friedman v. SThree PLC, et al., Civil No. 3:14CV00378(AWT) (D.Conn. October 24, 2016), Defendants expressed dissatisfaction with Plaintiff’s answers to discovery responses. After holding a conference with the court, the court issued an order requiring Plaintiff to conduct additional searches, to provide a certification as to the completeness of their discovery responses, to identify any privileged records, and provide details regarding the steps taken.
Plaintiff later requested a two day extension from the deadline, which the court denied and stressed that the original searches must be redone. After the deadline passed, Plaintiff produced additional discovery and a certification. Defendants responded and alleged numerous deficiencies with Plaintiff’s ESI and requested FRCP 37(b) sanctions.
FRCP 37(b) provides for sanctions when a party fails to obey a discovery order. These sanctions are aimed at:
- Ensuring a party does not benefit from its own failure to comply;
- Acting as specific deterrents and seeking to obtain compliance; and
- Acting as general deterrents for other litigation
Among the deficiencies in production, the court found Plaintiff failed to comply with the discovery order that said he must clearly and unequivocally explain the scope for the search conducted in response to Defendants’ request.
One problem the court pointed out is that Plaintiff certified only the records that he believed he had not initially produced. The court had been clear that it wanted a new search performed and conducted without limitation by any prior disclosures. The court also wanted Plaintiff’s attorney to assist in the searches, as before only Plaintiff had conducted the searches.
The court had reminded Plaintiff’s lawyer that he had an ongoing duty to oversee the effort to comply with discovery, including a litigation hold and ongoing monitoring of the efforts to retain and produce responsive documents. Citing Zubulake, the court noted that a good faith discovery system must have attorneys and clients working together to produce responsive documents.
The court sympathized with Defendant’s frustrations, as it appeared clear to the court that Plaintiff had not searched for or produced all responsive documents, and agreed that sanctions were appropriate due to the inadequate searches, contrary representations regarding Plaintiff’s email accounts, and incomplete productions in contrivance of the court’s order. The court ordered a daily monetary sanction of $150 per day, as a deterrent and incentive, until such time as Plaintiff produced the materials requested and provided a certification of completeness regarding the production.