eDiscovery Daily Blog

• June 18, 2018

In Singer Oil Co., LLC v. Newfield Exploration Mid-Continent, Inc., No. CIV-16-768-M (W.D. Okla. June 5, 2018), Oklahoma District Judge Vicki Miles-LaGrange ruled that the plaintiff did violate Federal rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records, but found that the defendant’s proposed sanction was an “extremely harsh sanction not warranted by the circumstances involved” and limited the plaintiff sanction to require the plaintiff to pay the attorneys’ fees the defendant incurred in filing its motion for sanctions and its reply.

Case Background

In November 2016, the plaintiff served its responses to the defendant’s discovery requests, representin that it had fully and truthfully answered the interrogatories and had produced or would produce all responsive documents to the requests for production.  The plaintiff subsequently confirmed that all responsive documents had been produced, did not claim privileged status for any unproduced documents and did not supplement its response to interrogatories or requests for production in the case.

After this case was tried to a jury in November 2017, the plaintiff filed its Amended Motion to Recover Attorney’s Fees. During review of the time records associated with that motion, the defendant became aware for the first time that throughout the course of this litigation, the plaintiff’s attorney frequently corresponded by e-mail with numerous third parties regarding several of the issues that were disputed in this litigation and the two wells at issue in the case, with the defendant asserting that at least two of the communications took place before plaintiff served its discovery responses.  In its response, plaintiff asserted that it did not violate the Court’s orders, did not violate the spirit of the Court’s orders, did not violate the letter or spirit of the discovery code and contended that the majority of the communications would fall under the work product doctrine.

Judge’s Ruling

After considering Federal Rules 26(g)(1),(3), 26(e)(1)(A) and 37(c)(1), Judge Miles-LaGrange found that “while plaintiff may not have intentionally violated the above-referenced discovery rules, plaintiff did violate those rules by not disclosing the communications its counsel had with the third parties referenced in plaintiff’s counsel’s time records. Request for Production No. 5 specifically requests any and all correspondence between plaintiff (including plaintiff’s counsel) and any other person or entity with respect to Newfield, the Smith Well, the Edgar Well, or the subject of this lawsuit; the Court finds the communications at issue would fall within this request for production. Additionally, while these communications likely would be protected by the work product doctrine, plaintiff did not assert such and did not provide Newfield with a privilege log such that Newfield could contest any claim of privilege. However, the Court finds that based upon plaintiff’s description of the communications at issue, any lack of production only had a very minimal, if any, impact on this case.”

As for an appropriate sanction against the plaintiff, Judge Miles-LaGrange stated: “In light of the amount of attorneys’ fees requested by plaintiff and the amount of costs taxed, the Court finds Newfield’s proposed sanction is an extremely harsh sanction not warranted by the circumstances involved. Having reviewed the parties’ submissions, the Court finds an appropriate sanction would be to require plaintiff to pay the attorneys’ fees Newfield incurred in filing its motion for sanctions and its reply.”

So, what do you think?  Do you think that was a sufficient sanction for failing to produce relevant ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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