Failure to Meet Discovery Deadlines is Lack of Due Diligence, Not Lack of Sophistication

Last week, Judge Adam M. Conrad issued a decision, Lunsford v. JBL Communications, LLC, No. 19 CVS 3973, 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021) granting in part and denying in part the Defendant's motion for sanctions. The Plaintiffs missed deadlines to respond to discovery requests. After the motion for sanctions was filed, Lunsford produced illegible documents that did not comply with the ESI protocol. At this time, it had also failed to begin to search a mobile phone and email accounts which clearly had responsive data. The Court had previously issued an order imposing sanctions on the Plaintiffs, ordering them to pay expenses, and set a 30-day deadline when the Plaintiffs failed to propose one themselves.

The Plaintiffs missed the deadline, but the Defendant consented to a request for an extension for another month. Again, no production was actually made. Altogether the Plaintiffs had more than four months to make a production since an order was issued to resolve the discovery dispute. The Plaintiffs then stated that it would take them additional time to review more than 160,000 pages of responsive material, and de-duplicate it, noting that counterclaim defendants would need to review their production. The request for more time was denied, and the Court ordered the parties to meet to propose a discovery schedule, and prepare to produce responsive ESI on a rolling basis. The Plaintiffs proposed a rolling schedule, but also indicated that they would not be able to follow it. They missed the first deadline, and said they could no longer follow the schedule, and also that they no longer would hire an electronic discovery vendor because it would be too expensive. They also disclosed that they had to review 160,000 documents rather than 160,000 pages.

The Plaintiffs only disclosed at a February 2021 hearing that they had re- engaged the electronic discovery vendor to conduct a review that would take 12 weeks. They also conceded at this hearing that their prior promises to produce documents were based on “ blind optimism”. Id. at *14.

Noting the Plaintiffs' failure to produce documents on dates they had selected themselves, Judge Conrad stated that, "At the hearing, Plaintiffs' counsel pleaded inexperience with the complexities of ESI discovery and a need to coordinate with counsel for the other counterclaim defendants. Neither is an excuse. At every step, the Court invited Plaintiffs to set the pace . . . Plaintiffs cannot justify their habitual failure to live up to their own estimates of the time needed to meet their discovery obligations as a lack of sophistication. It shows, instead, an unjustified lack of diligence." Id. at *17-18. He concluded that sanctions were warranted because of the prejudice suffered by the Defendant, and to ensure respect for the judicial process.

The Court ordered that the Plaintiffs should be prohibited from introducing evidence to support their affirmative claims and defenses, or opposing any of the Defendant's counterclaims or defenses. They were ordered to produce all responsive documents by May 10, 2021. Expenses and attorney fees were awarded as well. The Court declined the Defendant's request to order an adverse inference that a contract had been breached, and also to dismiss the Plaintiffs' claims. Judge Conrad also declined a request to hold the Plaintiffs in contempt, since the purpose of contempt is not to punish. "Because the Court has set a new deadline for document production, imprisoning Plaintiffs for violating the Sanctions Order would be punitive, not remedial." Id. at *24.