A North Carolina court recently granted in part and denied in part a defendant’s motion for sanctions against the plaintiff for missing deadlines to respond to discovery requests. Subsequent to the filing of the motion for sanctions, the plaintiff produced documents that were illegible and failed to comply with ESI protocol. Plaintiff also failed to conduct a search of email accounts and a mobile phone, both of which clearly had data that was responsive to the discovery requests.
The Discovery Dispute
The North Carolina court had issued a prior order imposing sanctions on the plaintiffs, which required payment of expenses and set a 30-day deadline to comply with the discovery. This deadline was imposed when the plaintiffs did not propose a date themselves to the court.
Although the plaintiffs missed the court’s deadline, the defendant agreed to a month extension. No production, however, actually occurred. Since the date of the discovery order instructing the parties to resolve the dispute, the plaintiffs had four months to produce. At that point, the plaintiffs claimed it would take even more time to review more than 160,000 pages of responsive material and remove duplicates. They also noted that the counterclaim defendants would need to review the production. When the plaintiffs requested more time, the court denied the request and instead ordered the parties to meet and propose an agreed-upon discovery schedule.
The plaintiffs missed the first deadline and disclosed that they could not follow the proposed schedule. They also noted they could no longer afford to hire an electronic discovery vendor due to expense and that they had to review 160,000 documents — not 160,000 pages.
The Court’s Decision
The court noted that the plaintiffs’ failure to timely produce documents on dates that they chose was unacceptable. Although the plaintiffs pleaded at court hearings that they were inexperienced in the complexities of ESI discovery and that they needed to coordinate discovery production with counsel for counterclaim defendants, the court did not find either one as a valid excuse. The court issued sanctions reasoning that the defendant suffered prejudice and to ensure respect for the judicial process.
According to the American Bar Association (ABA), there are several things an attorney can do to avoid mishandling discovery during litigation. These include:
- Creating a realistic schedule and sticking to it;
- Starting discovery as early as possible;
- Dating, sourcing, and stamping each delivery of documents;
- Preparing a privilege log; and
- Understanding the new Federal Rules.
The case is State of North Carolina vs. AppyCity, LLC; Timothy S. Fields; Melissa Crete; and Daisy Mae Fowler a/k/a Daisy Mae Barber 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021).