Sanctions for Violating Motion to Compel Production? Not Yet. – eDiscovery Case Law

By: Doug Austin

In Fidelity National Title Insurance Co. v. Captiva Lake Investments, LLC, No. 4:10-CV-1890 (CEJ), 2012 U.S. Dist. (E.D. Mo. Nov. 16, 2012), where a party’s “conduct [did not] rise[ ] to the level of a willful violation of the order compelling production” because it was continually working toward the proper production of documents requested by its adversary, a court concluded that the adversary’s motion for sanctions was premature.

Involved in a declaratory judgment action related to policy coverage, Captiva Lake Investments asked insurer Fidelity National to produce the claims file and documents in its possession that were related to Fidelity’s “evaluation of coverage under the policy at issue.”

Fidelity responded but did not produce or include in its privilege log two categories of documents: the Major Claims Reports and data maintained in Fidelity’s Claims Processing System (“CPS”). When Captiva discovered this, it requested the data, but Fidelity merely produced an updated privilege log, claiming it could withhold the documents under privilege. Captiva filed a motion to compel, and the court granted it, ordering Fidelity to produce the information. Fidelity, however, still failed to produce only some of the requested data. Captiva then filed this motion for sanctions.

The court noted that under Rule 37 of the Federal Rules of Civil Procedure, “‘there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party’” in order for the court to properly impose sanctions. Here, although Fidelity had produced only some of the information requested by Captiva, and although “the proceedings in this case present an extremely unflattering picture of Fidelity’s document and data management practices,” Fidelity was continuing to attempt to locate additional missing reports and was producing ones that it found; in addition, after producing some—but not complete—information from the CPS, Fidelity indicated to Captiva that it “‘was in contact with e-discovery specialists to figure out what else can be done with respect to the information in CPS.’”

Therefore, the court found that Fidelity’s failure to produce the data was not a willful violation of the order compelling production and denied Captiva’s motion for sanctions.

So, what do you think?  Should Fidelity have been sanctioned for failing to complete production?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

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Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

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Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at

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