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
- Whether plaintiffs’ failure to preserve, search, and timely produce relevant ESI warranted sanctions under Federal Rule of Civil Procedure 37 and related authority.
- Whether the costs of expert-assisted ESI retrieval and production should be shifted to plaintiffs.
- 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.