Court Warns Plaintiff that Further Noncompliance with Discovery Orders Could Result in Terminating Sanctions, and Orders Plaintiff to Produce Emails with Attachments Physically Attached

Miller v. IBM, 2006 WL 995160 (N.D. Cal. Apr. 14, 2006)

In this case involving breach of contract and fraud claims, IBM moved to preclude plaintiff Ralph Miller from offering evidence on any of the matters for which he had failed to comply with the court’s previous discovery orders. The court granted in part and denied in part IBM’s motion for sanctions, and warned that further noncompliance could result in terminating sanctions. Several of the matters on which the court granted relief related to electronic discovery.

On November 30, 2005, the court issued an order granting in part and denying in part IBM’s requests that had been presented in a joint discovery dispute letter. The court provided specific instructions as to how Miller was required to respond to each interrogatory and also ordered Miller to produce all responsive documents. Miller thereafter served “amended supplemental responses,” and IBM moved to compel complete responses and the production of documents. IBM also sought sanctions for Miller’s alleged violations of the November 30 Order. On February 6, 2006, the court granted Miller and his new counsel 30 additional days to comply with the November 30 Order. The court stressed that if Miller failed to provide full responses as ordered, it would “consider the imposition of sanctions, including limiting Miller’s responses to those contained in his various responses, as well as attorney’s fees and expenses.”

On March 16, 2006, IBM again moved for sanctions based upon Miller’s noncompliance. Among other things, IBM argued that Miller had not produced e-mails and accompanying attachments together and had not supplied a sworn affidavit.

The court granted IBM’s motion in part. Regarding Miller’s failure to produce emails and accompanying attachments together, the court stated:

In its February 6 Order, the Court ordered Miller to produce emails with the attachments physically attached to the emails to which they belong. On March 6, 2006, Miller produced certain electronic documents. IBM argues that Miller did not produce emails and attachments physically attached to one another. In response, Miller argues that the attachments were produced to IBM as files on a disk, and he has identified the specific emails to which the produced files were referenced. Miller also argues that he should not be compelled to guess as to which attachments belong to which emails when these cannot be determined with certainty, particularly when the bulk of the e-mails and attachments originated with IBM.

It is not clear how Miller can argue that he has identified specific email to which the produced files were referenced, while at the same time stating that he cannot determine which attachments belong to which emails. Accordingly, within 14 days from the date of this Order, Miller shall either: (a) produce the relevant emails with the attachments physically attached, or (b) provide specific references (i.e., date of production, Bates and/or page numbers, and labels) which enable IBM to identify which attachments belong to which emails. If Miller fails to comply with this order, he shall be precluded from using e-mails and/or attachments that are not properly attached to each other.

(Citations to the record omitted.) Regarding the sworn declaration Miller was ordered to provide, the court gave the following analysis:

In its February 6 Order, the Court also ordered Miller to serve on IBM a sworn affidavit fully describing why he was unable to produce any electronic files not produced that are relevant to this litigation. IBM contends that Miller failed to produce an affidavit. In response, Miller argues that IBM’s motion “does not state what kind of sworn Affidavit it wants or why it has reason to doubt the legal positions being exchanged on such items as the Altheimer & Gray or Paddock documents.”

It is unclear why Miller argues that he did not respond to the Court’s February 6 Order because IBM does not state what kind of affidavit it wants. Had Miller and his counsel failed to understand the Court’s directive, they could have sought clarification from the Court; instead, they apparently chose not to comply. The Court’s order is clear: serve a declaration explaining why Miller is unable to produce relevant documents. Accordingly, Miller is hereby PRECLUDED from using any electronic files as evidence that he has not already produced to IBM.

After resolving the remaining issues presented in the sanctions motion, the court closed with a warning to the plaintiff: “Failure to comply with this Order shall result in the imposition of further sanctions, including the potential termination of this case.”

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