The opinion of the court was delivered by: Judge Smith Magistrate Judge Kemp
Defendants have filed a motion for sanctions relating to National Union's failure to produce documents once possessed and reviewed by James Ilardi, the National Union executive who made the decision to settle the underlying Nationwide case and to institute this legal malpractice action against the defendants. Defendants point out that they previously requested such documents, that Mr. Ilardi testified in his deposition that such documents once existed and were turned over to another National Union Executive, Henry Williams, and that such documents were not only not produced after Mr. Ilardi's deposition, but National Union simply failed to respond to correspondence specifically asking if Mr. Williams had been able to locate the documents.
In what can properly be described as a terse affidavit, National Union's counsel states that he met with both Mr. Ilardi and Mr. Williams on some unspecified date ("after being retained") and that both denied having any relevant documents. The affidavit does not indicate that any additional inquiries were made after Mr. Ilardi's deposition testimony was given on January 24, 2006, nor does it explain why no response was given to the email sent by defendants' counsel on March 7, 2006.
It frequently happens that, during the course of litigation, a witness or a document may contain information that gives rise to a legitimate question about whether one party or the other has fully complied with that party's duty to make a diligent search for documents that the other party has requested. Often, the new information puts a sharper focus on the request, which is usually somewhat generic and which is usually processed in a similar generic fashion - i.e., by asking potential possessors of documents whether they have any responsive documents, and not whether they have particular documents that another witness or another document may identify in more detail. It appears that this is what happened here - that Mr. Ilardi and Mr. Williams were initially (or sometime after trial counsel was retained, which could easily have been three or more years ago) asked generally for documents responsive to defendants' requests - and that Mr. Ilardi has now, at his deposition and under more pointed questioning from defendants' counsel, identified some very specific documents he once possessed and stated that these particular documents would have been turned over to Mr. Williams when Mr. Ilardi left National Union's employ.
In the Court's view, the failure to produce documents initially under such circumstances may well be excusable (although the Court is not making that ruling here). Nevertheless, once an additional level of specificity is added to the request, the duty of a party to supplement discovery requests which that party later learns to have been incomplete or inaccurate at the time the response was made (see Fed.R.Civ.P. 26(e)) triggers a corresponding duty to find out if the earlier response was, in fact, incomplete or inaccurate. Nothing in the affidavit submitted by National Union suggests that National Union has made any effort to find out if the documents identified by Mr. Ilardi in his deposition still exist.
At this point, the Court's primary concern is to insure that National Union has made the appropriate inquiry and that defendants are provided with all documents that are responsive to their document requests. Consequently, National Union is ordered to supplement its response to defendants' motion for sanctions within 15 days in order to address, by appropriate affidavit, whether it still possesses the documents described by Mr. Ilardi, and what efforts it has made after the date of his deposition to find that out. If, after reviewing that response, defendants still believe that sanctions are appropriate, they may file a supplemental reply memorandum. The Court will hold a ruling on the motion for sanctions in abeyance pending the parties' supplemental filings.
Terence P. Kemp United States Magistrate Judge
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