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Sanctions denied despite late document production

Virginia Lawyers Weekly//February 17, 2023

Sanctions denied despite late document production

Virginia Lawyers Weekly//February 17, 2023

Although a party in a complex construction case made a late production of more than 79,000 documents, requiring the re-deposition of five witnesses, sanctions were denied. The party acted promptly by alerting the court and opposing counsel about the error, and discovery was completed within the discovery deadline.


In this complex construction case, on June 13, 2022, defendant BAE Systems Ordnance Systems Inc. discovered an error by its e-discovery vendor which caused an under-disclosure of a significant number of documents. BAE promptly notified plaintiff Fluor Federal Solutions LLC of this error three days later.

The court held an informal discovery conference regarding the vendor error and its implications and entered an order on July 14, 2022, requiring the rolling production of the newly discovered documents, with production to be completed by Aug. 1, 2022. Thereafter, BAE produced over 79,000 additional documents, all within the Aug. 1, 2022 deadline. As a result of BAE’s supplemental production, Fluor re-deposed five fact witnesses. Fluor now seeks to recover the fees and costs it incurred to prepare for and take the five depositions, and the fees to prepare for and argue this motion for sanctions.


I agree with Fluor that the 80,000 documents mistakenly withheld due to BAE’s vendor error and produced between June and August 2022 were not timely disclosed. BAE would have produced these documents earlier in litigation, but for the vendor de-duplication error. Indeed, BAE acknowledges that the documents at issue were improperly identified as duplications by its vendor, and thus were not produced in BAE’s regular document production. Ultimately, the vendor error is BAE’s error and the late document supplementation, although within the discovery deadline, was untimely.

However I do not find additional sanctions warranted. While the document production resulting from the vendor error was a surprise to Fluor, BAE immediately notified Fluor of the error, cured any surprise by producing the documents within the deadline set by the court and allowed Fluor to re-depose necessary witnesses. Fluor received the documents within the discovery period and the additional evidence did not disrupt any motions deadlines or the trial date. Fluor does not argue (and cannot) that the late production impacted its ability to fully prosecute its case at trial.

Imposing sanctions in this situation would only serve to discourage parties from disclosing and addressing discovery errors in the future. The intent of the Federal Rules of Civil Procedure is for parties to immediately address and deal with mistakes or errors in document production, not to punish parties when they promptly inform the opposing party and the court of a disclosure error.

Fed R. Civ. P. 1 requires the court and the parties “to secure the just, speedy, and inexpensive” resolution of actions. Additional sanctions in this situation neither meet the spirit of Rule 1 nor satisfy any need to sanction BAE beyond those it self-imposed.

Fluor’s motion for sanctions and request for attorney’s fees denied.

Fluor Federal Solutions LLC v. BAE Systems Ordnance Systems Inc., Case No. 7:19-cv-698, Feb. 7, 2023. WDVA at Roanoke (Ballou). VLW 023-3-043. 6 pp.

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