The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
THIS DOCUMENT RELATES TO: ALL CASES
This case was referred to me for resolution of discovery disputes. Currently pending and ready for resolution is Defendant ARINC Incorporated's Motion for Sanctions Against Defendant WMATA [#423]. For the reasons stated herein, the motion will be denied.
The collision between two Washington Metropolitan Area Transit Authority ("WMATA") trains occurred on June 22, 2009, and a lawsuit pertaining to it was filed within two days. Software called the Advance Information Management ("AIM") system had been installed by ARINC and plaintiffs named ARINC as a defendant in the complaint. See Master Complaint [#5]; Defendant ARINC Incorporated's Memorandum of Points and Authorities in Support of Motion for Sanctions Against Defendant WMATA [#423-1] at 2. On December 17, 2010, WMATA asserted a cross claim against, inter alia, ARINC for indemnity and contribution.
Defendant Washington Metropolitan Area Transit Authority's Cross-Claim Against Defendants Alstom Signaling, Inc., Ansaldo Sts USA, Inc., and ARINC Incorporated [#140].
On April 1, 2011, Judge Walton set April 15, 2011, as the deadline for production of documents. Amended Scheduling Order [#234]. Nevertheless, WMATA continued to produce documents well after that date in response to demands by the parties, including ARINC. [#423-1] at 4.
On August 10, 2011, ARINC took the deposition of a man named Daniel Epps, III, a WMATA employee who served as the Director of the Operations Control Center where ARINC's software, the AIM system, is in use. [#423-1] at 4. Eppps indicated that another WMATA employee named Beck Pak had the responsibility to make recommendations pertaining to a Business Process Review conducted by an ARINC subcontractor in connection with the design and implementation of the AIM system. Id.
ARINC had previously placed WMATA's production of documents into a database. Id. at 4. After Epps' deposition, ARINC searched its database to find some documents referencing Pak and those that did, came for the most part, from ARINC's own production. Id. ARINC inquired of WMATA whether it had collected and produced documents from Pak's file. Id. at 4-5. While WMATA investigated, ARINC looked in the database for the files of other WMATA employees, Arturo Weldon, Robert Gholston, III, and then later Milton Jetter, after WMATA indicated that Jetter was a contract specialist who had dealt with the contract between ARINC and WMATA.
On September 22, 2011, ARINC contacted WMATA about its concerns regarding how few documents had been produced as to these individuals and on September 29, 2011, the day before all discovery was to close, WMATA indicated that it was in the process of collecting the documents pertaining to these individuals. Id. at 6. WMATA also indicated that it had identified another employee, Ashak Rajpal, who was a contracting officer for the "WMATA ROCS/AIM upgrade." Id.
According to ARINC, from September 30, 2011, to October 14, 2011, WMATA made eight document productions, consisting of almost 300,000 pages of documents, and that when ARINC filed the current motion, it was still awaiting the production of additional documents. [#423-1] at 8. Having filed its motion for summary judgment on November 11, 2011, without certain documents, ARINC claims that it has been prejudiced by having to proceed without them. Id. at 8-9, 16. It urges that WMATA be precluded from using these documents while ARINC is permitted to use them, and that the jury be instructed that it may draw an adverse inference from WMATA's late production. Id. at 23. Finally, ARINC demands that it be paid its attorney's fees and costs for having to file the motion. Id. at 23-24.
In its opposition to ARINC's motion, WMATA supplements the history of this dispute by recounting its responses to the discovery demanded by plaintiffs and its fellow defendants. See WMATA's Opposition to ARINC Incorporated's Motion for Sanctions [#463]. First, WMATA notes that it had to respond simultaneously to the discovery demands of the plaintiffs and its co-defendants. [#463] at 4. With the concurrence of plaintiffs, "WMATA created seven general categories of requested materials to classify responsive documents" and used this approach "to address countless complications presented by the requests for documents from the co-defendants." Id. Because WMATA and ARINC shared an e-discovery vendor, WMATA indicated that it was not asked and therefore did not provide the names of the "custodians" of the produced discovery since it believed that ARINC had equal access to those names. Id. at 5. WMATA ultimately produced ...