Plaintiff Awarded $134,613 as Sanction for Late Discovery Production
What constitutes a valid excuse for late production when answering plaintiff eDiscovery and document requests? An order dated May 22, 2013 in Nuance Communications Inc. v. Abbyy Software House, et al., No. C 08-02912 JSW (N.D.Cal. 2013) considered an excuse from a defendant when ruling upon plaintiff’s motion for sanctions.
The defendant claimed the production was late “as a result of their satisfaction of [plaintiff] Nuance’s multiple other discovery requests seeking massive amounts of irrelevant information.” So in plain English, the defendant was arguing that because it already supplied a great amount of irrelevant information, the duty of production was complete. Unsurprisingly, the court did not agree with this assertion, “The Court does not find the delay in production justified considering the scope of this case and the sheer amount of lawyering and the parties’ investment of time and effort.”
The court pointed out that the late production caused more than simple inconvenience. The late production evidenced the need to re-open discovery and re-take depositions that had been done prior to the deadline.
Fed. R. Civ. Pro. 37 addresses the situations where a party fails to make certain disclosures or cooperate in discovery and allows for sanctions. Rule 37(a)(5)(A) states, in pertinent part, “If the motion [to compel disclosure or discovery] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”
The court ordered the undisputed amount of $120,068 in attorney fees and $14,544 in costs for the plaintiffs to re-take the depositions.