Case Law: Techsavies, LLC v. WDFA Mktg. Inc.

Friday, April 15, 2011 by Thought Leadership Team

Court Bars Introduction of and Reliance on Relevant Documents Not Timely Produced

Techsavies, LLC v. WDFA Mktg. Inc., 2011 WL 723983 (N.D. Cal. Feb. 23, 2011). In this discovery dispute, the plaintiff requested sanctions alleging the defendant failed to both timely produce documents and respond to an interrogatory. Despite the plaintiff’s multiple complaints that the first production of 32,000 documents was incomplete, the defendant did not produce approximately 120,000 additional responsive documents until after discovery closed, claiming it “moved offices and simply forgot about them.” Agreeing the defendant was on notice of its inadequate responses, the court found the defendant had an affirmative duty to investigate but failed to do so in a timely manner. Further, the defendant did not seek leave of the court before correcting its production. Concluding the defendant was unable to show its conduct was substantially justified or harmless, the court held sanctions were appropriate; however, the court also noted that the plaintiff contributed to the problems as it never moved to compel discovery. Thus, the court barred the defendant from introducing and relying on any untimely produced documents and ordered the parties to meet and confer regarding this issue.


Rule 34(b) is often central to numerous discovery disputes. Whether practitioners seem to ignore the importance of this rule, are tied up with concerns relating to other aspects of the discovery process (such as preservation) or simply are unsure of proper production practices is unclear. What is clear is that fulfilling your production obligations appropriately will eliminate many disputes that are inherently unnecessary and costly both in terms of time and money.

In this case, the defendant “simply forgot” about the additional responsive documents claiming it had moved offices. The plaintiff had complained multiple times of the defendant’s incomplete production, but the defendant failed to acknowledge its duty to continue conducting searches for remaining documents that should have been produced. As a result of this failure, the court sanctioned the defendant by barring it from introducing and relying on any untimely produced documents. Had the defendant conducted its due diligence in fulfilling its discovery obligations under the Federal Rules of Procedure, the time and money spent litigating this motion would have likely been unnecessary. In addition, the defendant would not be faced with formulating case strategy with the absence of what could well be critical or influential documents.

A successful production begins with proactive planning. Planning should include determining what production options would be best for the case, including the timing and volume of productions, the output medium and whether multiple productions will be required. Counsel should formulate answers to these considerations prior to the meet and confer conference in order to be prepared to discuss production and other discovery issues. Prepared counsel at this conference will likely be able to secure a more favorable outcome regarding various discovery concerns. Be prepared as well to raise an objection to the format specified by the requesting party if necessary. Also, counsel is well-advised to simply play it straight, avoiding attempts to hide the ball. Nothing positive is gained by conducting discovery in bad faith, other than sanctions that could be detrimental to your case, your client and even your professional reputation and career.