United States District Court, D. Colorado
ORDER ON DEFENDANT'S MOTION FOR
Michael E. Hegarty, United States Magistrate Judge
believes that, during the course of this litigation, the
Plaintiff has failed to initially disclose and produce in
response to discovery requests “key documents on which
she has relied” and now moves for an order imposing
sanctions against the Plaintiff pursuant to Fed.R.Civ.P. 37.
The Court finds that, while the Plaintiff failed to produce
requested documents in a timely manner to the Defendant, the
Defendant has not demonstrated prejudice as a result of
Plaintiff's failure. Thus, the Court will deny the
case, Plaintiff sues Defendant for breach of insurance
contract and other related claims following a May 6, 2012
March 23, 2017, defense counsel notified the Court during a
discovery conference that Plaintiff had failed to include in
her initial disclosures copies of any policy provisions or
correspondence between her and Defendant, some on which she
relied during depositions. See Tr. 85-96, ECF No.
93. Defendant cited as an example that the second page of a
letter drafted by Plaintiff's counsel to the insurance
adjustor before litigation commenced was never sent to the
adjustor, but was eventually received by Defendant on April
14, 2016 when the parties were preparing the Scheduling Order
for this case. Tr. 91-93. Plaintiff did not agree that this
error was “prima facie evidence” of a deficiency
in her production, and asked for the Court's guidance as
to what needed to be produced. Tr. 93-94. The Court ordered:
THE COURT: Okay. So first of all, you've got to make sure
you've answered all discovery requests. And if you have
said you're producing documents, that, in fact, you have
produced all documents. But this would reasonably be a
document that should be disclosed in a Rule 26 disclosure
because it is something that you will rely on. And we have an
affirmative obligation to produce documents we're going
to rely on because you would use this to establish notice to
the insurance company that they should have been considering
all these points you were making in adjusting the claim. And
so unless -- MR. ELDRIDGE: Sure. That makes sense.
THE COURT: -- unless she's asked for correspondence, you
don't have to produce correspondence. But you do have to
produce documents that would fall within your obligation of
Rule 26. Sound right?
MS. LUSH: That's fair, Your Honor.
THE COURT: Okay. Of course you can ask for correspondence if
you haven't yet.
MS. LUSH: I believe it's been requested.
THE COURT: Okay. If it has been requested, then it falls
within a request. And to have not produced that document, if
she's asked for correspondence that you've had with
her client, then it would be a failure.
motion, filed thirty-five days after the March 23, 2017
discovery conference, Defendant contends the Plaintiff not
only produced no documents in response to its November 2016
discovery request for correspondence, but also produced
nothing in response to the Court's order. Plaintiff
counters that the faxed letter identified by defense counsel
at the March 23, 2017 conference and in its motion was
actually faxed and emailed to the adjustor, and the
adjustor responded to the full letter by email. Plaintiff
also contends that the other documents identified as not
properly produced were or should have been part of the
insurance claims file. Finally, Plaintiff asserts that, in
its order, the Court identified no deadline by which the
documents were to be produced and, upon conferral with the
Defendant about its motion, the Plaintiff attempted to assure
Defendant that the documents were forthcoming and, in fact,
the documents were delivered May 1, 2017. Defendant replies
standing on its contention that it did not receive the
complete letter at the time it was faxed; the documents
Plaintiff finally produced on May 1 should have been
disclosed initially or produced in response to discovery
requests; and, Plaintiff made no argument that its delay in
production was substantially justified or harmless.
appears to seek relief pursuant to Fed.R.Civ.P. 37(c) for
failure to provide information as required by Rule
26(a) and/or pursuant to Fed.R.Civ.P.
37(d)(1)(A) for failure to serve answers, objections, or a
written response to a request under Rule 34. Mot. 5-6; Reply
3-4. As such, the Court understands that Defendant is arguing
Plaintiff failed to disclose written correspondence between
her and Defendant under Rule 26(a)(1) an 26(e), and she
failed to respond altogether to Defendant's Rule 34
request for production of written correspondence.