G & E Real Estate, Inc. v. Avison Young - Washington, D.C., LLC
Civil Action No. 2014-0418
| D.D.C. | Oct 18, 2017Background
- Defendants moved for sanctions over belated production of about 16,000 McNair Emails from the Grubb & Ellis server.
- 458 McNair Emails were produced on October 24, 2014; discovery closed February 10, 2015.
- Plaintiff’s counsel later disclosed the 16,000 emails were not previously produced.
- A March 2017 production log indicated a McNair entry dated October 6, 2014, mischaracterized in earlier logs.
- In March-April 2017, Plaintiff disclosed and produced the balance of McNair emails and related materials; Plaintiff also produced unproduced Superior Court Documents.
- Court chose to reopen discovery and denied sanctions, denying the pretrial motions without prejudice
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sanctions are warranted for belated email production | Plaintiff contends belated production caused prejudice; seeks relief via sanctions or exclusion | Defendants argue sanctions are appropriate under Rule 37(b)(2) or 37(c)(1) for nonproduction | Sanctions are not warranted; discovery will be reopened to cure prejudice |
| Whether Rule 37(b)(2) or 37(c)(1) sanctions apply | Plaintiff failed to meaningfully conceal the emails | Defendant seeks dismissal or exclusion for late production | Rule 37(b)(2) sanctions not triggered; Rule 37(c)(1) not automatically applicable without showing non-disclosure prejudice or failure to comply |
| Whether the court should reopen discovery | Additional discovery is necessary to address new materials | Reopening would prejudice defendants and delay case | Court reopens discovery to cure the late production; sanctions denied without prejudice |
Key Cases Cited
- Webb v. District of Columbia, 880 F.2d 1140 (D.C. Cir. 1998) (sanctions for discovery violations; cautions against drastic remedies)
- Shepherd v. Am. Broadcasting Cos., Inc., 62 F.3d 1469 (D.C. Cir. 1995) (dismissal as a drastic sanction requires clear misconduct and justification for lesser sanctions)
- Washington Metro. Area Transit Comm’n v. Reliable Limousine Serv., LLC, 776 F.3d 1 (D.C. Cir. 2015) (severe sanctions require willfulness or fault; default is inappropriate absent such showing)
- Armenian Assembly of Am., Inc. v. Cafesjian, 746 F. Supp. 2d 55 (D.D.C. 2010) (sanctions considerations under Rule 37(c)(1) and the need for harmless prejudice or substantial justification)