Abercrombie Fitch Co.v.Federal Insurance Co.

United States District Court, S.D. Ohio, Eastern DivisionJun 20, 2007
Case No. 2:06-cv-0831 (S.D. Ohio Jun. 20, 2007)

Case No. 2:06-cv-0831.

June 20, 2007


ORDER


TERENCE KEMP, Magistrate Judge

On February 27, 2007, the Court denied a motion which had been filed by third party defendant National Union for an extension of time to respond to document requests served upon it by Federal Insurance Company. In the order, the Court directed National Union to serve a written response to the document request within ten days. That order further required the written response to indicate a date certain on which the requested documents would be made available and provided that the date should be "no more than ten days after the date of the response." Because the order was issued on February 27, 2007, National Union's written response was due on March 9, 2007, and the documents were required to be produced no later than March 19, 2007.

Although National Union did serve its written discovery responses on March 9, 2007, it neither committed to a firm date for the production of the documents requested nor did it produce those documents by March 19, 2007. According to filings made in connection with Federal's most recent motion to compel, which was filed on April 4, 2007, the following occurred with respect to the document production.

When the documents were not produced by March 19, 2007, Federal asked, in a letter dated March 23, 2007, when the documents could be produced. That letter also stated that if no response were received by March 29, 2007, Federal would file a motion to compel production and would seek sanctions. In an e-mailed response, National Union's counsel indicated that he was "putting the documents together" but that they could not be produced by March 29, 2007. That e-mail, which is dated March 28, 2007, also expressed the hope that the delay in production was "acceptable" and that "motion practice [would] not be necessary." In response, Federal, without waiving any of its rights to challenge the delay in producing the documents, agreed not to file a motion to compel if it received the documents by the close of business on April 3, 2007.

The documents were not received by that date. Apparently, the attorney primarily responsible for the document production was ill on April 3, 2007. Early in the morning of April 4, 2007, he sent an e-mail advising that the documents had been assembled and would be mailed that day. However, before that e-mail was actually read by the person to whom it was directed, the motion to compel had been prepared and filed. It appears from the latest filing made by Federal with respect to this issue that the document production was not complete, and that additional documents may well be forthcoming. Nonetheless, had the documents which were produced on April 4, 2007 been produced a day earlier, the present motion would not have been filed. The question before the Court is a simple one: should National Union be sanctioned for its failure both to produce documents by the March 19, 2007 deadline set by the Court and its further failure to produce those documents by April 3, 2007 in order to avoid the need for Federal to file a motion to compel? For the following reasons, the Court concludes that sanctions in the form of attorneys' fees ought to be awarded for this conduct.

Although National Union has suggested that the motion filed by Federal is moot because the documents have been produced, that is not necessarily the case. The issue of sanctions survives the response to a discovery request when the response occurs after a motion is filed. The issue in such a case when discovery has already been provided is the reasonableness of the delay which led to the filing of a motion. See Central States, Southeast and Southwest Areas Health and Welfare Fund v. Neurobehavioral Associates, 1997 WL 757879 (N.D. Ill. December 2, 1997). Of course, it is necessary for the party who filed the motion to have acted in good faith in an attempt to obtain discovery prior to filing the motion, but when that has occurred, it is the burden of the responding party to justify the delay. Sanctions can be issued even in the absence of a showing of bad faith as long as the delay which engendered the filing of the motion cannot be substantially justified. Lee v. Walters, 172 F.R.D. 421 (D. Or. 1997); see also J.M. Cleminshaw Co. v. City of Norwich, 93 F.R.D. 338, 350 (D. Conn. 1981).

The Court turns first to the question of whether Federal acted reasonably and in good faith in filing its motion to compel. The facts, as recited above, show that Federal did not file its motion immediately upon becoming aware of National Union's non-compliance with the Court's order of February 27, 2007. Rather, after failing to receive the documents by the date prescribed in the order, Federal contacted National Union, inquired about the whereabouts of the documents, and provided a reasonable date for compliance together with advice that if compliance did not occur by that date, a motion to compel would be filed. When National Union responded (only one day before the new deadline) by stating that it could not produce the documents by then, but would do so a week later, Federal again agreed to withhold filing a motion so long as the documents were produced by the close of business on April 3, 2007. It prepared and filed its motion only after National Union failed to meet that deadline and failed effectively to communicate the fact that the documents were going to be produced the next day. The fact that counsel for Federal did not read an e-mail sent early on the morning of April 4, 2007 until after the motion was filed is not unreasonable conduct. Thus, the only other question relating to sanctions is whether National Union's delay in producing the documents was reasonable.

National Union's initial reason for not complying with the March 19, 2007 deadline is that it simply misread the Court's order. It does not argue that the Court's order was in any way ambiguous, and it does not appear to be. The fact that one or more attorneys simply misread a short, plain order would not ordinarily be a reasonable justification for a delay.

However, that delay is not really the issue here. After its misreading of the order was brought to National Union's attention though the series of communications described above, National Union knew that so long as it produced the documents by April 3, 2007, Federal would not file a motion to compel. National Union was aware by close of business on April 3, 2007 that it would not meet that date. Despite the fact that one of its attorneys may have been ill on that date, no explanation is given for National Union's failure even to place a telephone call to Federal on that date explaining the reason for the delay and requesting a brief extension. Moreover, on April 4, 2007, when National Union did produce the documents, it did not communicate that fact by telephone, which would have been the most expeditious way to do so, but rather chose to send an e-mail. Although e-mails are typically a speedier form of communication than regular mail, it is a common experience that e-mails may not be opened and read either for hours or, in some cases, for days after they are sent. It does not strike the Court as reasonable to communicate such an important message, and one so time-sensitive, by way of e-mail when it could easily be envisioned that even a delay of several hours in opening the e-mail would result in the preparation and filing of a motion which, under the circumstances, proved to be largely unnecessary. Thus, although these facts may not indicate that National Union acted in bad faith, they do not rise to the level of substantial justification for the delay both in producing the documents and in communicating to Federal that a delay was occurring. As a result of these occurrences, none of which are the fault of Federal, it prepared and filed its motion to compel. The Court sees no reason why Federal should be required ultimately to bear the expense for that filing when it easily could have been averted by more reasonable conduct on National Union's part.

Federal has not requested a specific amount of attorneys' fees as a sanction. However, based upon the Court's experience and a review of the motion itself, the sum of $750 should be adequate to provide reasonable compensation to Federal for the attorneys' fees incurred in filing the motion. Thus, National Union is directed to pay sanctions under Fed.R.Civ.P. 37(b)(2) in the amount of $750. Such sanctions shall be paid within thirty days of the date of this order.

Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.

This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.