In a recent Opinion, Judge Noel L. Hillman, sitting by designation, affirmed the May 20, 2016 Order of Magistrate Judge Joel Schneider, in which he sanctioned defendant for “belatedly producing one particular email and other documents.” Evonik Degussa GmbH v. Materia, Inc., C.A. No. 08-636-NLH-JS (D. Del. Dec. 14, 2016). Judge Schneider found that defendant “should have, on more than one occasion, reviewed its production for completeness, and did not.” Id. at 3. Accordingly, Judge Schneider awarded plaintiff “attorneys fees it incurred due to the late production and allowed [plaintiff] additional discovery. Id.
Judge Schneider, however, rejected plaintiff’s assertions that defendant or its attorneys “acted in faith.” Id. at 2. Plaintiff contested Judge Schneider’s finding regarding the “serious of [defendant’s failure]” to procedure certain documents, and argued that the sanction Judge Schneider “imposed was too lenient.” Id. Specifically, plaintiff argued that Judge Schneider should have ruled that: (a) “the belatedly produced documents could not be used by [defendant] at trial,” and (b) plaintiff “is entitled to an adverse inference jury instruction.” Id. at 3.
In support of its argument, plaintiff asserted that “Judge Schneider ‘converted” [plaintiff’s] spoliation motion into a discovery motion under Rule 37, and then [asserted] that Rule 37 requires– as opposed to permits– the Court to preclude [defendant] from relying on the belatedly-produced documents at trial.” Id. at 3-4. Judge Hillman disagreed, explaining that Judge Schneider rejected plaintiff’s “spoliation argument because spoliation requires a finding of bad faith, and then very clearly imposed sanctions pursuant to Fed. R. Civ. P. 26, not Fed. R. Civ. P. 37.” Id. at 4. Plaintiff also reasserted the arguments it presented to Judge Schneider that defendant’s conduct “evidences bad faith.” Id. Judge Hillman found that “Judge Schneider addressed this argument, considered all of the record evidence, and concluded that there was insufficient evidence to support [plaintiff’s] ‘conspiracy theory.’” Id. Judge Hillman found that Judge Schneider’s findings were not clearly erroneous in this regard, and affirmed the court’s Order regarding sanctions.