The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
There are a number of outstanding discovery disputes pending before the Court in Wiwa v. Royal Dutch Shell Petroleum Co., 96 Civ. 8386, and Wiwa v. Anderson, 01 Civ. 1909 (collectively "Wiwa"); as well as in Kiobel v. Royal Dutch Shell Petroleum Co., 02 Civ. 7618 ("Kiobel"). This order addresses one of these discovery disputes: a motion for a discovery sanction of dismissal, 96 Civ. 8386 D.E. ("96-D.E.") 260, by defendants in the three above-captioned actions ("Defendants").
Defendants argue that the Court should dismiss the Wiwa and Kiobel cases as a discovery sanction under Federal Rule of Civil Procedure 37(b)(2) because plaintiffs in these cases ("Wiwa Plaintiffs" and "Kiobel Plaintiffs"; collectively "Plaintiffs") continued to produce discovery documents after the date by which Magistrate Judge Pitman had ordered them to complete production (the Court's "completion deadline"), and after filing affidavits with Magistrate Judge Pitman several months after the completion deadline stating that their production was complete. (Mot. Disc. Sanction Dismissal 4, 6-7, 14-16.)
For the reasons below, Defendants' motion for a discovery sanction of dismissal, 96-D.E. 260, is DENIED, but Defendants are granted the opportunity to redepose certain witnesses on the eve of, or during, trial. In addition, the Court orders further briefing regarding whether Plaintiffs must pay reasonable expenses for their tardy production.*fn1
Defendants contend that Kiobel Plaintiffs' compliance with the Court's order to complete discovery has been so insufficient as to warrant a discovery sanction of dismissal. In particular, Defendants argue that Kiobel Plaintiffs' affidavits and deposition testimony indicate that they have not produced documents that Defendants contend are in their possession, custody, or control.*fn2 (Mot. Disc. Sanction Dismissal 7-9, 13.) Defendants also argue that dismissal is warranted because Kiobel Plaintiffs have produced responsive documents on the day of, or following, Defendants' depositions of plaintiffs and witnesses, despite the fact that the depositions occurred months after the Court's completion deadline.*fn3 (Id. at 9-10; Kiobel Reply 4-5, 8- 9.) Defendants contend that Kiobel Plaintiffs' tardy production has prejudiced Defendants because they have been unable to use the late-produced documents in their depositions. (Kiobel Reply, 9-10.)
Kiobel Plaintiffs argue that they have produced documents responsive to Defendants' discovery requests and the Court's discovery order sufficiently and with good faith. In particular, they argue that documents Defendants contend are outstanding are in one of three categories: (1) not in Kiobel Plaintiffs' possession, custody, or control; (2) not responsive; or (3) do not exist. (Kiobel Mem. L. Supp. Kiobel Pls.' Opp'n Defs.' Mot. Disc. Sanction of Dismissal ("Kiobel Opp'n") 2-3.) They also contend that Kiobel Plaintiffs' counsel have adequately supervised their clients' document production, including by traveling to Nigeria and across the United States to recover documents; by acquiring allegedly withheld categories of documents from public sources, Kiobel Plaintiffs, and third parties; and by searching Kiobel Plaintiffs' homes. (Id. at 3-5.) They further argue that their production of documents during depositions and after the Court's completion deadline was not the result of bad faith or negligence, but was due to misunderstandings by "unsophisticated plaintiffs," which occurred despite counsel's and Kiobel Plaintiffs' diligent efforts. (Id. at 4-5)
Defendants argue that Wiwa Plaintiffs' compliance with the Court's order to complete discovery has also been so insufficient as to warrant a discovery sanction of dismissal. In particular, Defendants argue that Wiwa Plaintiffs' affidavits indicate that several Wiwa Plaintiffs did not begin searching for documents in Nigeria until just before their affidavits were due, and several months after the Court had ordered Wiwa Plaintiffs to complete production. (Mot. Disc. Sanction Dismissal 16-17.) Furthermore, Defendants argue that dismissal is warranted because Wiwa Plaintiffs continued to produce documents responsive to Defendants' initial discovery requests after swearing in their affidavits that they had already produced all responsive documents. (Id. at 15; Wiwa Reply Mem. L. Supp. Defs.' Mot.
Disc. Sanction Dismissal ("Wiwa Reply") 3-4.) In addition, Defendants contend that Wiwa Plaintiffs' affidavits and deposition testimony indicate that they may still have unproduced documents in their possession.*fn4 (Id. at 17, 19-21; Wiwa Reply 7-8.) Defendants also argue that Wiwa counsel have been insufficiently involved in Wiwa Plaintiffs' document searches. (Id. at 18-19; Wiwa Reply 5-6.) Lastly, Defendants contend that Wiwa Plaintiffs' piecemeal and belated production has prejudiced Defendants because they were unable to use many of the tardy documents in their depositions. (Wiwa Reply, 8-10.)
Wiwa Plaintiffs contend that they have made consistent, good faith, and satisfactory efforts to fulfill Defendants' discovery requests and the Court's discovery order. In particular, they argue that all the documents Defendants allege Wiwa Plaintiffs have yet to produce are in one of three categories: (1) not in Wiwa Plaintiffs' possession, custody, or control; (2) not responsive; (3) do not exist; or (4) have already been produced. (Wiwa Mem. L. Opp'n 1-6.) They further detail the sustained and substantial (if not always timely) efforts they and their counsel have made to produce all responsive documents, most of it timely.*fn5 (Id. 2-4; 15-16.) Finally, they note that Magistrate Judge Pitman, in ordering Plaintiffs to submit affidavits detailing their searches and production, anticipated that doing so would help them ensure that they had not ...