Cherrington Asia Ltd. v. A & L Underground, Inc.

263 F.R.D. 653, 2010 U.S. Dist. LEXIS 1546, 2010 WL 126190
CourtDistrict Court, D. Kansas
DecidedJanuary 8, 2010
DocketNo. 05-1214-EFM-DWB
StatusPublished
Cited by4 cases

This text of 263 F.R.D. 653 (Cherrington Asia Ltd. v. A & L Underground, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherrington Asia Ltd. v. A & L Underground, Inc., 263 F.R.D. 653, 2010 U.S. Dist. LEXIS 1546, 2010 WL 126190 (D. Kan. 2010).

Opinion

MEMORANDUM AND ORDER

DONALD W. BOSTWICK, United States Magistrate Judge.

Before the Court is Plaintiffs’ Motion for Sanctions Against Defendant A & L Underground, Inc., for Its Discovery Abuses (Doc. 101) and supporting memorandum (Doc. 102), filed on December 5, 2008. Defendant A & L filed a Response (Doc. 104), and Plaintiff filed a Reply. (Doc. 107.) Because the motion requested only monetary sanctions for alleged discovery abuses and did not directly affect the pretrial conference or final trial preparation, the court took the motion under advisement, see Doc. 109, and has deferred ruling on the motion. The case has now been tried to a jury, a judgment entered, and post-trial motions have been filed. After review of the parties’ filings concerning sanctions, the court is prepared to rule.

PROCEDURAL BACKGROUND

When the case was first filed, counsel believed that they could proceed by means of informal discovery to obtain information necessary in order to attempt an early mediation. Therefore, in the initial Scheduling Order, the court only set certain minimal deadlines for the parties to accomplish this informal discovery. See Doc. 16. Both parties timely served initial disclosures under Rule 26(a)(1). (Doc No’s 17, 18.) Subsequently, the parties advised the court that they needed to employ more formal discovery procedures, and the court set additional deadlines for such discovery. See Doc. 19. These deadlines were extended (Doc. 20), and on February 3, 2006, Plaintiffs served their first set of interrogatories and first document requests. (Doc. 21.)

The court continued to have regular telephone conferences with counsel to attempt to identify any discovery disputes that might have arisen. See Doc’s 20, 24, 25, 29, 30, 32, 33, 34, 36, 47, 49 and 52. In the July 11, 2007 telephone conference, a deadline was set for briefs concerning an outstanding discovery dispute. (Doc. 52.) Both parties then submitted briefs concerning Plaintiffs’ complaint that Defendants had simply executed a “document dump” of a computer hard drive which contained documents of A & L in connection with the Iraq project. See Doc’s 54, 55.1

After reviewing the briefs and hearing oral argument at a telephone conference on July 31, 2007, the court entered an order directing Defendants

to provide Plaintiff with a listing or index of those directories/files [on the computer hard drive] which contain documents responsive to Plaintiffs document requests, ie., documents related to the Iraq project. See e.g., Oklahoma ex. rel. Edmondson v. Tyson Foods, Inc., 2007 WL 1498973 (N.D.Okla., May 17, 2007). That listing or index shall be produced on or before August 31, 2007. Defendant is not required to provide such a listing or index concerning the electronically stored information (e-mails) which were produced on compact discs. See Doc. 54, Ex. 2.

(Doc. 55 at ¶ 1.) On August 21, 2007, Defendants filed a Notice of Compliance with the Court’s Instruction Concerning Computer Hard Drive. (Doe. 57.)

[656]*656The parties then proceeded to an early mediation which was not successful (Doc. 60), and the court subsequently entered a Scheduling Order (Doc. 59) setting out deadlines for discovery, expert reports, etc. The court continued to have regular telephone status conferences with counsel, see Doc. 63, and the parties continued with both written discovery and depositions. Plaintiffs noticed the Rule 30(b)(6) deposition of A & L on December 4, 2007 (Doc. 62), but amended that notice on January 18, 2008, and set the deposition for February 8, 2008. (Doc. 70.) Regular telephone status conferences with the court continued thereafter through August 22, 2008. See Doc No’s, 74, 76, 77, 79, 842 and 88. The parties continued to exchange expert disclosures and continued with additional discovery both written discovery and depositions, including another Rule 30(b)(6) deposition notice to A & L for July 8, 2008. (Doc.82.)

On December 5, 2008, Plaintiffs filed the present motion for sanctions and their supporting memorandum, and after responses and replies, the court took the motion under advisement. The final pretrial conference was held on June 30, 2009, and trial commenced on December 15, 2009. As previously noted, a jury verdict in favor of Plaintiffs was entered on December 22, 2009, and judgment was entered that day. (Doc. 150, 151.) A post-trial motion has been filed by Defendants seeking a new trial and stay of execution on the money judgment (Doc. 152), but that motion is not yet fully briefed or decided.

SANCTION CLAIMS AND DEFENSES

Plaintiffs have divided their motion which seeks monetary sanctions of $56,119.11, into four discrete claims: Simply stated, the requested sanctions for the “document dump” represent time spent by attorneys and legal assistants in an attempt to decipher the information included in this production by A & L. Plaintiffs argue that the February 16, 2006 email from Richard Gilstrap reflects A & L’s intent to “dump” documents from the computer hard-drive in such a form that would require Plaintiffs’ counsel to expend time and expenses to locate relevant files, and that this intentional conduct justifies the imposition of sanctions.

1. For the computer hard drive “document dump” in 2007 -$22,588.00
2. For the February 8-9, 2008 Rule 30(b)(6) depositions -$16,006.92
3. For the July 7-8, 2008 Rule 30(b)(6) depositions -$10,376.07
4. For the cost of an accounting expert -$ 7,148.12

The sanctions for both sets of Rule 30(b)(6) depositions basically revolve around additional costs and time incurred by Plaintiffs’ counsel due to A & L’s failure to timely provide requested financial documents related to the expenses and profits for the Iraq project so that Plaintiffs could determine the amount of their claims. Plaintiffs recite difficulties concerning the Rule 30(b)(6) depositions of A & L, particularly the portion where Richard Gilstrap was the designated representative of A & L, and claim that Gilstrap did not comply with his responsibilities to prepare to testify on behalf of the corporation as required by the rule.

Finally, the cost of the accounting expert also relates to time spent by attorneys, legal assistants and the accounting expert in trying to reconcile incomplete and contradictory financial information related to the expenses and profits in the Iraq project that was produced by A & L in a piecemeal fashion, long after it had originally been requested, and which allegedly were the result of A & L’s purposeful withholding of key financial documents.

Defendant A & L claims that it produced the computer hard drive in precisely the format in which it was maintained in the normal course of business. It further argues that when the court in July 2007 required it to provide an index of the computer files and to isolate non-relevant files, it did so, and that it loaded on the hard-drive a search [657]*657engine that allowed Plaintiffs to search the hard drive for words, phrases, etc.

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263 F.R.D. 653, 2010 U.S. Dist. LEXIS 1546, 2010 WL 126190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherrington-asia-ltd-v-a-l-underground-inc-ksd-2010.