Under Fed R. Civ. P. 37(b)(2)(A), the court in the district where a lawsuit is pending may issue “just orders” if a party fails to obey an earlier order to provide or permit discovery. Rule 37(b)(2)(A)(i)–(vii) is a non-exclusive list of sanctions the court may include in the “just orders.” Pursuant to Rule 37(b)(2)(C), instead of or in addition to these sanctions, the court must order the noncompliant party, the attorney, or both, to pay reasonable expenses, including attorney fees, unless the failure to comply was substantially justified or other circumstances make such an award unjust.Bird v. Wells Fargo Bank, No. 1:16-cv-01130 (E.D. Cal. July 7, 2017), describes conduct that resulted in sanctions under Rule 37(b)(2)(C).
Bird filed a motion to compel and for sanctions contending in part that Wells Fargo Bank failed to comply with an earlier court discovery order. The earlier order required that Wells Fargo "produce documents consistent with this order and schedule its production on a rolling basis to conclude” by a certain date. Wells Fargo failed to produce the required discovery by the deadline and did not obtain an extension from the court. The court’s order imposing Rule 37 sanctions stated that Wells Fargo’s “production of discovery in this case has been fraught with delays and obfuscation. As a result, the schedule in this case has been extended far beyond that initially contemplated.” The order goes on to state:
History shows that Wells Fargo was delaying at each stage and showed no indications of voluntary compliance without Plaintiff filing a motion to compel and obtaining a court order. It was only after serious court intervention and Plaintiff's continued persistence in pressing Wells Fargo to comply with its discovery obligations that Wells Fargo finally produced responsive information in a meaningful way. The Court does not believe that Wells Fargo would have produced a reasonable production on a reasonable time frame, as required by the rules, without such motion and order. See Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 615 (C.D. Cal. 2013) (explaining that, while the federal rules do not demand perfection, "parties must impose a reasonable construction on discovery requests and conduct a reasonable search when responding to the requests" and that "the discovery process relies upon the good faith and professional obligations of counsel to reasonably and diligently search for and produce responsive documents.")
Despite Wells Fargo’s conduct, the court did not impose Rule 37(b)(2)(A) sanctions, only a monetary sanction under Rule 37(b)(2)(C).
A court may provide needed leeway if you are reasonably resolving a discovery dispute. Bird shows it is not wise to frustrate the court’s expectations by then failing to resolve the discovery dispute in accordance with the court’s orders. Rule 37(b)(2)(A) gives the court significant power to sanction the failure to obey a discovery order, and Rule 37(b)(2)(C) requires the court to impose a monetary sanction against the disobedient party, the attorney, or both. Perfection may not be demanded, but good faith and the fulfillment of professional obligations is expected.
Andrew M. Toft is an attorney in Denver, Colorado.