Plaintiff’s Failure to Produce Electronic Records Did Not Warrant Ultimate Sanction of Dismissal

Martin v. Northwestern Mut. Life Ins. Co., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006)

Plaintiff, a trial lawyer, sued his insurer for disability benefits. The insurer propounded discovery about income the plaintiff may have generated while disabled, including income derived from practicing law. Suspecting that additional documents existed which had not been produced, defense counsel met and conferred on the subject, and filed several motions to compel a more complete production. For each motion, plaintiff essentially maintained he had complied with his discovery obligations. Undeterred, the defendant subpoenaed plaintiff’s bookkeeper and his fiance, each of whom produced documents that had not been produced by plaintiff. Included within these items were travel expenses and proof of income derived from practicing law. All of the documents were electronically stored in the computers of plaintiff’s bookkeeper and his fiance.

Although plaintiff conceded he should have produced many of these items in response to the defendant’s first document request, he asserted his omissions were innocent. He stated that, when he received the defendant’s initial production demand, he directed his accountant to gather the documents requested and give the defendant “everything.” She apparently either failed to understand the scope of the demand or the obligations it imposed, and plaintiff simply assumed she would satisfactorily meet the production demands. When defense counsel raised questions about the discovery production, plaintiff did little follow up. Plaintiff essentially claimed that he was “computer illiterate” and, therefore, incapable of retrieving any electronically stored documents.

The court denied the defendant’s motion for the ultimate sanction of dismissal since plaintiff’s failure to produce electronic documents was not the result of bad faith, callous disregard, or intentional misconduct. However, since the court found plaintiff’s reasons for non-production unsatisfactory, lesser sanctions were appropriate:

The majority of documents eventually produced by Miner and Duggan were material and were in Plaintiff’s home at the time the First Request for Production was served on him. As an attorney, the Plaintiff is familiar with the rules of discovery and should have understand his discovery obligations. Once his counsel notified him about the possibility his initial responses were potentially inadequate, he should have investigated his accountant’s work and supplemented his production accordingly. Instead, he just relied on his agent to fulfill his obligations. His claim that he is so computer illiterate that he could not comply with production is frankly ludicrous. Accordingly, he should reimburse the Defendant its reasonable expenses, including attorney’s fees, for his noncompliance.