The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution is Defendant Honeywell International Inc.'s Motion for Sanctions and Motion to Compel Against the United States of America [#46].*fn1 For the reasons stated below, the motion will be denied without prejudice, pending the conclusion of discovery. At that point, the motion may be renewed, with the parties being given adequate time to resubmit their papers. In the interim, I recommend to Judge Roberts that, if he sees fit, he permit me to provide intensive weekly supervision of the discovery process so that it concludes by the new date set by the presiding judge.
On June 5, 2008, the United States brought this action against Honeywell International Inc. ("Honeywell") pursuant to the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-33.*fn2
According to the United States, Honeywell "submitted false claims for payment and false statements in connection with the sale of defective body armor, primarily ballistic 'bullet-proof' vests, to the United States and to state, local, and tribal law enforcement agencies funded in part by federal funds." Complaint of the United States of America [#1] ¶ 1. The United States further alleges that the defective vests manufactured by Honeywell contained a patented product known as Zylon Shield or Z Shield, which Honeywell sold to Armor Holdings, Inc. and its subsidiaries, who in turn used it in the manufacture of bullet-proof vests that were ultimately sold to the various law enforcement agencies. Id. These vests, the United States alleges, were defective because the "Z Shield degraded quickly over time in hot and humid environmental conditions," thereby affecting the vests' ballistic performance and fitness for use as body armor. Id. ¶ 41.
Honeywell has now moved for sanctions, complaining that the Department of Justice*fn3 did the following:
1) Represented that its production was nearly complete and then a) produced large amounts of data and b) found three previously undisclosed computers belonging to Kirk Rice, said by Honeywell to be "the most important Government witness in this case";*fn4
2) Failed to issue litigation holds to certain key custodians and failed to take forensic images of their hard drives;*fn5
3) Delegated, without any supervision, the responsibility of finding documents to witnesses who failed to use absolutely crucial terms such as "Z Shield"--the product at issue--or "Honeywell";*fn6
4) Produced sets of documents that were clearly not responsive to the discovery demands but instead contained "inappropriate jokes, chat-room discussions filled with vulgarity, lunch menus, retirement parties, office blood drives and so forth";*fn7
5) Represented that its discovery practices were adequate even though Honeywell directed the Department's attention to its shortcomings;*fn8 and
6) Sponsored testimony that was proven inaccurate by the subsequent disclosure of documents.*fn9
Finally, Honeywell insists that it has been severely prejudiced by the Department's failings. [#46-1] at 42.
For its part, the Department defends its production of great amounts of data and documents on the grounds that it imposed careful, definitive litigation holds and comprehensive instructions to the key custodians on what to keep and how to search for it. United States' Memorandum in Opposition to Honeywell International Inc.'s Motion for Sanctions and Motion to Compel and In Support of the Government's Motion to Strike [#55] at 12-24. While it concedes that there have been delays in the discovery and production of relevant documents, it claims to have cured any deficiencies as soon ...