Court Imposes Sanctions for Failure to Conduct Reasonable Inquiry and Late Production

In re Delta/AirTran Baggage Fee Antitrust Litig., ---F. Supp. 2d---, 2012 WL 360509 (N.D. Ga. Feb. 3, 2012)

After repeated representations that all responsive documents had been produced, a defendant belatedly discovered and produced an additional 60,000 pages. Upon plaintiffs' motion for sanctions, the court found that the defendant “did not conduct a reasonable inquiry” to ensure production of all responsive documents and had run “afoul” of Rule 26(e). Accordingly, the court ordered discovery re-opened and that the defendant pay plaintiffs’ reasonable expenses and attorneys’ fees caused by the defendant’s failure, including the cost of the necessary motions and the extended discovery period.

Throughout the discovery process a defendant made approximately 20 representations that all responsive documents had been produced. Despite this, approximately 60,000 additional pages were belatedly discovered and eventually produced after the close of discovery. The late-produced documents were of two types: documents discovered on individual hard drives and documents discovered on backup tapes. According to the defendant, the late-discovered documents from individual hard drives were originally overlooked as the result of a misunderstanding with its IT personnel. In short, the defendant believed that the contents of all collected hard drives had been uploaded to its e-discovery software to be searched and ultimately produced. Unfortunately, defendant failed to specifically confirm this belief, and learned later than some hard drives had been inadvertently overlooked. Similarly, as to the late discovered backup tapes, the defendant explained that they had been belatedly and unexpectedly discovered in an evidence locker and that no one was certain who put them there.

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Source: ediscoverylaw.com