D. Minn.: Fee-Shifting Sanctions for Failure to Reproduce Emails Buried in Initial Data Dump

Today, Magistrate Judge Katherine Menendez issued a decision, Darmer v. State Farm Fire & Cas. Co., No. 17-cv-4309-JRT-KMM, 2019 U.S. Dist. LEXIS 185862 (D. Minn. Oct. 28, 2019) granting in part and denying in part the Defendant's motion for sanctions under Fed. R. Civ. P. 37(b) and the court's inherent power for the Plaintiff's failure to produce documents detrimental to its claim.

The Court had earlier found an initial production by Darmer, which consisted of flash drives containing unorganized data with no Bates numbering to be a data dump and ordered him to review the documents for responsiveness and confidentiality, and re-produce the data in a more organized manner. The subsequent production omitted key contractual agreements relevant to the case. A subpoena on a third party obtained emails between Darmer and the third party in which the Plaintiff discouraged the third party from cooperating with State Farm's claim investigation. Darmer failed to produce these emails himself in the revised production. Counsel for the Defendant produced an Excel spreadsheet which indicated where some but not all of the missing emails were located on the flash drives with the initial unorganized production, and the missing contractual documents were located and produced.

Magistrate Menendez awarded payments of fees and expenses for re-taking depositions and for bringing the motions for sanction, but did not find that other sanctions were warranted. The failure to produce the contractual documents, which the facts showed Darmer knew existed and had in his possession, abused the discovery process in bad faith. Her decision further observes that, "The flash drives that Mr. Darmer and Mr. Beckmann originally produced were so unorganized and bloated with irrelevant information that a review would have been prohibitively and disproportionately expensive. This is why the Court took the somewhat unusual step of requiring the plaintiff's side to regenerate an entirely new substitute production when it granted State Farm's motion to compel. There is no excuse for burying unquestionably relevant and responsive communications in a massive and unusable data dump and then, when the effort was finally made to give the other side something akin to what the rules require, excluding those same emails." Id. at *23

Magistrate Menendez refused to excuse Darmer for his lack of technical skill in handling productions from web-based email. "It was unreasonable for Mr. Beckmann to turn over to his client the responsibility for searching through his ESI and that abdication contributed to the discovery failures in this case." Id. at *25. Counsel was required to make a reasonable inquiry into the completeness of the production.

The Court declined to order a forensic examination of Darmer's computers; strike claims in Darmer's complaint; or provide adverse inference instructions. The jury will hear about the discovery abuses and be allowed to draw its own inferences.