No Sanctions Where Party is Two Days Late Producing Documents


Can you get Rule 37 sanctions when your opponent is two days late producing documents? Here, thankfully, the court answered “No.”

The case is captioned Tencero v. Oceaneering International, (E.D. Louisiana) (17-7438) (March 19, 2019). In the opinion, the district court denies a motion for Rule 37 sanctions. Plaintiff filed a personal injury case against the Defendant. He sought the production of documents. The defendant produced the documents two days late which forced the Plaintiff to review 1400 pages on the night before a deposition. To me, this does not sound like much of an outrage at all, and certainly not a motion for sanctions. However, the court took it seriously, but denied the motion.

There is no dispute that Oceaneering failed to comply with the court’s discovery order. The court finds that Oceaneering’s delay prejudiced Tercero, who was forced to review 1,400 new pages of documents on the day before the Walsh deposition when he should have had four days to do so. Oceaneering describes a misunderstanding as the reason for its delay, but this does not entirely excuse its failure to timely comply with the court’s order, especially in light of the Walsh deposition scheduled on February 27, 2019. While Oceaneering did ultimately comply, at the time plaintiff filed this motion, Oceaneering merely “hoped” to have the documents by February 26, 2019. The motion may have been necessary to ensure that Oceaneering’s document production was actually made on that date and not on the day of or following the Walsh deposition.

Nonetheless, the court finds no evidence of willfulness in Oceaneering’s delayed production of documents. Additionally, although Tercero’s counsel represents that he had a lot of work to do the day before the deposition, he has not identified any specific documents that he was unable to identify from the mass of 1,400 pages until after the deposition. At this time, then, it does not appear necessary to order a second deposition of Walsh. The court notes that the borrowed servant issue was being developed at this late date, and on an expedited basis, as a result of plaintiff’s actions, not Oceaneering’s. Accordingly, the severe sanctions proposed by Tercero (prohibiting Oceaneering’s witnesses from testifying or deeming Tercero the borrowed servant of Oceaneering) are not appropriate here.

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