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Keywords

plaintiffdefendantjurisdictionlitigationattorneydiscoverymotioncivil procedure

plaintiffdefendantattorneydiscoverymotionobjectiongood faith

Related Cases

Doe v. McAleenan

Facts

Plaintiffs sought review under the Administrative Procedures Act of changes allegedly made by defendants to the Lautenberg-Specter program for processing refugee applications. Defendants produced a document, DEF-1931, without redactions, which they later sought to claw back, claiming it contained privileged information. The court allowed jurisdictional discovery, and the plaintiffs argued that the document was critical to their case, while defendants contended that it was inadvertently produced without proper redactions.

Defendants produced DEF-1931 without redactions and without any assertion of privilege on November 29, 2018.

Issue

Whether the defendants' clawback of the document DEF-1931 was justified and whether sanctions should be imposed for their handling of the document.

Whether the defendants' clawback of the unredacted version of DEF-1931 was justified and whether sanctions should be imposed for their handling of the document.

Rule

Under Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure, if a motion to compel is granted, the court must require the party whose conduct necessitated the motion to pay the movant's reasonable attorneys' fees and costs associated with the motion, unless certain exceptions apply.

Rule 37(a)(5)(A) provides that if motion to compel is granted, or if the requested discovery is provided after the motion is filed, a court must require the party whose conducted necessitated the motion to pay the movant's reasonable attorneys' fees and costs associated with the motion, unless (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action, (ii) the opposing party's nondisclosure, response, or objection was substantially justified, or (iii) other circumstances make an award unjust.

Analysis

The court found that defendants had waived any claim of privilege regarding DEF-1931 by failing to assert it promptly after the document was discussed in open court and used in litigation. The court noted that defendants did not take reasonable steps to protect the privileged contents of the document and delayed in asserting a claim of privilege until after plaintiffs highlighted its importance.

The Court accepts defendants' assertion that the Department of Justice's e-discovery vendor failed to implement redactions noted by USCIS agency counsel and produced DEF-1931 to plaintiffs without redactions in late November or early December 2018.

Conclusion

The court granted plaintiffs' motion for an award of attorneys' fees and costs under Rule 37(a)(5)(A), concluding that defendants' assertion of privilege was not substantially justified.

The Court grants plaintiffs' motion for an award of monetary sanctions on this ground.

Who won?

Plaintiffs prevailed in part, as the court awarded them attorneys' fees and costs due to defendants' improper handling of the document.

Plaintiffs are entitled to an award of attorneys' fees and costs under Rule 37(a)(5)(A) payable by defendants in an amount to be determined by the Court after plaintiffs lodge billing records sufficient to support the amount requested.

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