United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is LM Insurance Corporation and Liberty Mutual Fire
Insurance Company's (collectively, “Liberty”)
Motion to Compel DMI to Comply with Court Order Concerning
Production of Settlement Agreement and Related Documents. (R.
Doc. 31). The motion is opposed. (R. Doc. 34). Liberty has
filed a Reply. (R. Doc. 37-2).
August 23, 2017, the Court granted, in part, Liberty's
Motion to Compel DMI to Produce Settlement Agreement and
Related Documents (R. Doc. 18), and ordered the following:
The parties shall meet-and-confer within 7
days of the date of this Order regarding the entry
of a non-sharing confidentiality agreement and/or a motion
for leave for entry of a protective order regarding the
information to be produced in response to Request for
Production Nos. 1 and 6. DMI shall produce all documents in
its possession, custody, or control responsive to Request for
Production Nos. 1 and 6 within 7 days of
execution of the entry of a protective order by the Court
governing the exchange of confidential information in this
(R. Doc. 30 at 11). The referenced requests for production
seek “The final executed settlement agreement between
[DMI] and Powko Industries, Inc.” and “All
documents related to any payment by [DMI] of any amount to
Powko Industries, LLC or its members in connection with the
settlement of the State and Federal Lawsuits.” (R. Doc.
30 at 7).
filed the instant motion on October 6, 2017. (R. Doc. 31).
Liberty argues that DMI has violated the Court's August
23, 2017 Order because “DMI will neither confer
concerning a protective order, despite LMIC's requests,
nor produce the documents” ordered to be produced. (R.
Doc. 31 at 1). In support of its motion, Liberty submits
correspondence indicating that DMI's counsel sent a draft
protective order to Liberty's counsel on August 29, 2017;
Liberty's counsel suggested revisions to the draft
protective order on September 8, 2017; DMI's counsel
represented that she would review the draft protective order
“before the end of the day” on September 14,
2017; Liberty's counsel inquired about the status of the
protective order on September 19, 2017; and, on September 26,
2017, Liberty's counsel informed DMI's counsel that
Liberty would file the instant motion and seek sanctions if
it did not receive a response regarding the protective order
the following day. (R. Doc. 31-2 at 3-4; see R. Doc.
32-3 at 3-5).
opposition, DMI argues that its counsel “made best
efforts to comply with the Court's August 23
Order.” (R. Doc. 34 at 7). In support of this position,
DMI submits additional e-mail correspondence between counsel
to underscore the efforts taken, including an August 24, 2017
email from DMI's counsel setting up the initial
conference regarding the protective order, as well as a
representation that DMI's counsel reviewed the redline
changes to the proposed protective order provided by
Liberty's counsel on September 14, 2017. (R. Doc. 34 at
2-6). DMI also represents that counsel for the parties
conferred by phone on August 29, 2017 regarding the
protective order. (R. Doc. 34 at 3). Finally, DMI argues that
it is not in violation of the Court's August 23, 2017
Order because its duty to produce the documents discussed in
the Order is not triggered until the entry of a protective
order. (R. Doc. 34 at 2).
October 18, 2017, the parties filed a Joint Stipulation of
Confidentiality and Agreed Protective Order. (R. Doc. 35).
October 20, 2017, the Court granted the foregoing motion, and
entered a protective order governing the exchange of
confidential information in this action. (R. Doc. 36).
of the Federal Rules of Civil Procedure provides for the
imposition of sanctions against a party who fails to obey an
order to provide or permit discovery. Fed.R.Civ.P.
37(b)(2)(A). Instead of or in addition to sanctions permitted
under Rule 37(b)(2)(A)(i)-(vii), “the court must order
the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).
reviewed the record, including the correspondence between the
parties, the Court finds that the instant motion should be
denied. As required by the Court's August 23, 2017 Order,
the parties held a telephone conference regarding the entry
of a protective order governing confidentiality within seven
days of the date of the Court's Order. Liberty did not
provide its suggested revisions to DMI's proposed
protective order until September 8, 2017. While both parties
could have been more diligent in negotiating the terms of a
proposed protective order, the record does not support a
finding that either party violated the Court's August 23,
on the foregoing, IT IS ORDERED that
Liberty's Motion to Compel DMI to Comply with Court Order
Concerning Production of Settlement Agreement and Related
Documents (R. Doc. 31) is DENIED. The
parties shall bear their own costs. As required by the August
23, 2017 Order, DMI shall produce all documents in its
possession, custody, or ...