## Facts

- Eight military families sued a private military-housing manager and others, alleging mold-related personal injury and property damage in government-owned housing in Virginia.
- Before suit, defense counsel identified substantial plaintiff social-media activity about mold and sent a January 2012 preservation letter to lead plaintiff directing preservation of relevant electronic records.
- After consolidation, defendants served discovery seeking plaintiffs’ ESI, including emails, text messages, and social-media posts concerning housing conditions and claimed injuries.
- Plaintiffs initially produced almost none of the requested ESI and repeatedly failed to meaningfully search for and produce it, despite conceding that relevant ESI existed.
- The court held three hearings on defendants’ efforts to compel production; plaintiffs still did not produce most responsive ESI.
- Plaintiffs represented that forensic collection would be expensive and resisted undertaking it; the court extended discovery and continued the trial date to permit compliance.
- After court involvement and expert assistance, plaintiffs produced more than 5,000 records, many characterized as cumulative.
- Defendants moved for sanctions, seeking cost shifting for expert-assisted ESI production and attorneys’ fees, plus additional relief based on plaintiffs’ delay and noncompliance.

## Issues

1. Whether plaintiffs’ failure to preserve, search, and timely produce relevant ESI warranted sanctions under Federal Rule of Civil Procedure 37 and related authority.
2. Whether the costs of expert-assisted ESI retrieval and production should be shifted to plaintiffs.
3. Whether additional sanctions beyond monetary relief were appropriate.

## Decision

- The court granted the motion in part and denied it in part.
- The court ordered plaintiffs to pay $29,220.04 for the expert costs incurred to produce plaintiffs’ electronic media.
- The court ordered an award of a portion of defendants’ attorneys’ fees associated with the motion-to-compel practice, after applying Rule 37(a)(5)(A).
- The court denied the request for any other or further sanctions.

## Legal Principles

- A party must preserve relevant ESI once litigation is reasonably anticipated; a specific preservation demand and evident relevance of electronic communications strengthen that duty.
- Repeated failure to search for and produce discoverable ESI, after requests and court intervention, supports sanctions under Rule 37.
- Where expert or forensic ESI work is made necessary by a party’s noncompliance, a court may shift those costs to the noncompliant party as a targeted monetary sanction.
- When a motion to compel is granted, Rule 37(a)(5)(A) generally authorizes fee shifting, including partial fee awards tailored to the circumstances.
- Sanctions should be proportionate to the discovery misconduct; monetary sanctions may be sufficient absent a showing warranting dispositive or evidentiary sanctions.

## Conclusion

The court imposed proportional monetary sanctions for plaintiffs’ prolonged ESI discovery failures by shifting expert-retrieval costs and awarding partial fees tied to motion practice, while declining to impose harsher remedies.


Federico v. Lincoln Military Hous., LLC, 2014 WL 7447937 (E.D. Va. Dec. 31, 2014)