In a recent Memorandum Opinion, Chief Judge Leonard P. Stark denied defendant Costco Wholesale Corporation’s (“Costco”) motion to dismiss the litigation pursuant to Rule 37(b)(2) for discovery misconduct by plaintiff Robert Bosch LLC (“BLLC”). Robert Bosch LLC v. Alberee Products, Inc., C.A. No. 12-574-LPS (D. Del. Jan. 24, 2017). BLLC failed to comply with the court’s order to produce certain documents by a given deadline following a discovery dispute. See id. at 1-2. BLLC stated reason for not producing the documents is that its parent, Robert Bosch GmbH (“BGmbH”), “refused to search for and produce any documents when BLLC requested BGmbH to do so, even when BLLC’s requests were backed by an order of the Court.” Id. at 2. Costco’s motion pursuant to Rule 37(b)(2) followed. Id. at 3-4.
Denying Costco’s request to dismiss the case, Judge Stark consider the six factors set forth in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir. 1984). First, considering BLLC’s responsibility, the Judge Stark noted that “Costco should have been given access to BGmbH-held documents that were responsive to Costco’s requests, regardless of whether such documents were supportive of BLLC’s positions in this litigation. BLLC had effective control over production of such documents.” Id. at 6. On this point, Judge Stark further explained that “[b]ecause BLLC had control over the disputed documents, BLLC is largely responsible for its failure to produce the required documents and the failure to comply with the Court’s . . . Order. Therefore, this first Paulis factor weighs in favor of dismissal.” Id. at 8. Judge Stark also found that Costco was highly prejudiced by BLLC’s misconduct, given that Costco was “deprived of the opportunity to develop its defenses during fact discovery within the necessary context of full production of responsive documents.” Id. at 8. Such prejudice also weighed in favor of dismissal. Id. at 8-9. The Court also found BLLC’s history of dilatoriness in the litigation and willful disobedience of the court’s discovery order to weigh in favor of dismissal. See id. at 9-10.
Ultimately, however, Judge Stark found in this instance that “[l]esser, alternative sanctions are appropriate and will adequately ameliorate the prejudice Costco has suffered.” Id. at 10-11. Indeed, as Judge Stark noted, “[d]ismissal must be a sanction of last, not first, resort.” Id. at 10. Rather than dismissal, Judge Stark required BLLC to pay “Costco’s reasonable attorney’s fees that were caused by BLLC’s discovery misconduct.” Id. at 11. Further, Judge Stark provided that “Costco will be permitted the opportunity to seek further discovery, should it believe any is necessary, in order to ensure that Costco will have received in production all materials and other discovery which it would have obtained had BLLC lived up to its discovery obligations throughout this case.” Finally, Judge Stark ruled that “in connection with submission of the proposed final pretrial order and the final pretrial conference, the Court will consider, if requested by Costco, granting relief in limine to exclude particular late-produced evidence, should Costco be able to persuade the Court that, in light of the totality of applicable considerations, such evidence should be excluded.” Id. at 11.