United States District Court, D. Maryland
case has been referred to me, by consent of the parties, for
all proceedings and the entry of judgment, in accordance with
28 U.S.C. § 636(c). [ECF 60]. Plaintiff Class Produce
Group, LLC (“CPG”) filed this lawsuit against
Defendant Harleysville Worcester Insurance Company
(“Harleysville”), alleging that Harleysville
failed to indemnify CPG pursuant to an insurance contract,
and failed to pay CPG's insurance claim. [ECF 38].
Presently pending is Harleysville's Motion for Sanctions
or, in the Alternative, Motion to Compel CPG's Answers to
Interrogatories and Request for Production of Documents. [ECF
74]. CPG opposed the Motion (“Opp.”), and
Harleysville filed a Reply (“Reply”). [ECF 86,
91]. Because CPG had produced discovery during the briefing
of the original motion, following a Court Order [ECF 94], CPG
filed another Response (“CPG's Response”),
and Harleysville filed another Reply
(“Harleysville's Second Reply”). [ECF 95,
98]. I find that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). For the following reasons,
Harleysville's motion is GRANTED in part and DENIED in
Hollander entered a scheduling order in this case on May 16,
2018, setting a deadline of September 14, 2018, for
Harleysville to make disclosures in compliance with Federal
Rule of Civil Procedure 26(a)(2). [ECF 62]. On July 2, 2018,
Harleysville served CPG with Interrogatories and Requests for
Production of Documents. [ECF 74-1]. On August 3, 2018,
counsel for CPG requested an additional two weeks to respond
to Harleysville's requests. [ECF 74-2].
Harleysville's counsel responded that he was willing to
discuss the requested extension, but because CPG had pushed
for an expedited schedule, Harleysville wanted to discuss
moving other deadlines. Id. The parties did not
discuss further extensions. Two weeks later, on August 16,
2018, Harleysville inquired about the status of CPG's
Answers and Responses. Id. Counsel for CPG responded
that the discovery responses would be submitted by the
following week, August 20-24, 2018. Id. On August
24, 2018, CPG produced documents to Harleysville, and
indicated that the remaining discovery responses would be
submitted by the following week, August 27-31, 2018.
Id. The 7, 000 documents eventually produced by CPG
were not segregated, were missing several attachments, and
required several days for Harleysville to download in
readable form. [ECF 74 ¶ 8]. Without further response
from or discussion with CPG, Harleysville filed the instant
motion on September 6, 2018. [ECF 74]. On September 7, 2018,
CPG served its Answers and Responses to Harleysville's
Interrogatories and Requests for Production of Documents.
[ECF 86-3]. On September 10, 2018, I held a telephonic
conference to discuss the scheduling issues raised by
Harleysville. As a result of that conference, I entered a
revised scheduling order, setting a new deadline of November
14, 2018, for Harleysville to make its Rule 26(a)(2)
disclosures. [ECF 79].
October 4, 2018, Harleysville filed a Reply in support of the
instant motion, raising several issues regarding the
sufficiency of CPG's discovery responses, to which CPG
had not yet had the opportunity to respond. [ECF 91]. As a
result, on October 10, 2018, I directed CPG and Harleysville
to meet and confer in an attempt to resolve the discovery
dispute, pursuant to Local Rule 104.7. [ECF 94]. In the event
that a meet and confer did not resolve the dispute, I
directed the parties to brief their respective positions on
the sufficiency of CPG's discovery responses.
to resolve the discovery dispute began before my October 10,
2018 Order. Harleysville contacted CPG regarding its
deficient discovery responses on October 4, 2018, and CPG
responded on October 5, 2018, providing several explanations
for its discovery responses. [ECF 98-1]. As a result of my
October 10, 2018 Order, CPG compiled a privilege log,
supplemented its document production, including email
communication, and provided supplementary interrogatory
answers. See [ECF 95 at 4, 98-3, 98-5, 98-6]. The
parties held a telephonic conference on October 12, 2018, to
address the sufficiency of the updated discovery responses.
[ECF 98-2]. On October 16, 2018, counsel for Harleysville
sent a letter to CPG's counsel, memorializing the
conference call between the parties. [ECF 98-2]. As a result
of the parties' telephonic conference, Harleysville
agreed to limit the scope of Interrogatories Nos. 7 and 8,
and Requests for Production of Documents Nos. 18 and 20 to
the “‘Warehouse Sewer System' as claimed
defined in the Interrogatories/Requests.” Id.
at 2. CPG also agreed to send copies of the produced
documents that were inaccessible or password protected.
Id. According to Harleysville, however, CPG
“refused to segregate out responsive documents that
would be produced at the company's facility”
because the amount of documents would “fill a large
U-Haul Truck.” Id. at 2-3; [ECF 98-1 at 1].
Harleysville also objected to CPG's untimely privilege
log, arguing that it was not sufficient under Federal Rule of
Civil Procedure 26(b)(5), and that it did not provide the
information required by Discovery Guideline 10(d).
Id. at 4. Harleysville raised concerns over
CPG's lack of produced emails and CPG's 16, 000
documents already produced, which Harleysville contends
“were not produced in any indexed fashion that relate
to particular responses.” Id. at 5.
parties were unable to resolve the discovery dispute, and
they briefed their respective positions on the sufficiency of
CPG's discovery responses. [ECF 95, 98]. CPG supplemented
its privilege log before Harleysville filed its Reply, adding
a list of specific dates for the email communications it
deemed subject to its claims of privilege. [ECF 98-4].
now seeks sanctions against CPG in the form of a default
judgment or an order deeming CPG's late responses and/or
objections to be waived. In the alternative, Harleysville
seeks an order compelling CPG to fully respond to the
outstanding discovery requests, and requiring CPG to pay the
attorneys' fees and expenses Harleysville incurred in
preparing this Motion.
Motion for Sanctions
Federal Rule of Civil Procedure 37(d)(1)(A)(ii), the Court
may grant a motion for sanctions if a party fails to serve
answers, objections, or a written response to properly served
discovery requests. The motion must certify that “the
movant has in good faith conferred or attempted to confer
with the party failing to act in an effort to obtain the
answer or response without court action.” Fed.R.Civ.P.
37(d)(1)(B). When granting the motion, the Court has broad
discretion to select any of the sanctions listed in Federal
Rule 37(b)(2)(A), such as dismissal of the action or the
rendering of a default judgment against the delinquent party.
Instead of, or in addition to, these sanctions, the Court
“must require the party failing to act, the attorney
advising that party, or both to pay reasonable expenses,
including attorney's fees, caused by the failure, unless
the failure was substantially justified or other
circumstances make an award of expenses unjust.”
determining which of the Rule 37 sanctions is appropriate,
courts in the Fourth Circuit consider four factors:
“(1) whether the non-complying party acted in bad
faith, (2) the amount of prejudice that noncompliance caused
the adversary, (3) the need for deterrence of the particular
sort of non-compliance, and (4) whether less drastic
sanctions would have been effective.” S. States
Rack and Fixture, Inc. v. Sherwin-Williams, Co., 318
F.3d 592, 597 (4th Cir. 2003) (internal quotation marks
omitted). The presence or absence of any one of these factors
is not dispositive. See Victor Stanley, Inc. v. Creative
Pipe, Inc., 269 F.R.D. 497, 533 (D. Md. 2010).
“[A]s a general matter, defaults [should] be avoided
and  claims and defenses [should] be disposed of on their
merits.” Colleton Preparatory Acad., Inc. v. Hoover
Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010)
(citing Tazco, Inc. v. Director, Office of Workers Comp.
Program, U.S. Dep't of Labor, 895 F.2d 949, 950 (4th
Cir. 1990) (“The law disfavors default judgments as a
general matter.”)); Consol. Masonry &
Fireproofing, 383 F.2d 249, 251 (4th Cir. 1967)
(“Generally a default should be set aside where the
moving party acts with reasonable promptness and alleges a
not find the sanctions sought by Harleysville to be
appropriate at this stage, in part because this is the first
discovery dispute raised in this case, and because CPG served
its Answers and Responses one day after the motion was filed.
After application of the factors, I find that the email
correspondence between the parties does not reflect bad faith
on CPG's part, nor has Harleysville been prejudiced by
CPG's delay. CPG's counsel submitted the requested
documents on August 24, 2018, within the time period CPG
communicated to Harleysville's counsel. [ECF 74-2].
Although CPG submitted the remaining discovery Responses and
Answers two weeks later, on September 7, 2018, CPG's
counsel noted on August 24, 2018, that the responses would be
forthcoming. Id. Moreover, Harleysville's
scheduling concerns were addressed during the telephonic
conference on September 10, 2018, after which I amended the
scheduling order to allow ample time for both parties to meet
their respective pretrial deadlines. Thus, I do not find that
Harleysville suffered any prejudice in this delay.
Accordingly, the drastic sanctions sought by Harleysville are
not appropriate. However, the parties are reminded that a
scheduling order “is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by counsel
without peril.” See Gestetner Corp. v. Case Equip.
Co., 108 F.R.D. 138, 141 (D. Me. 1985). Further failures
to comply will be viewed in accordance with this warning.