In Transcap Assoc., Inc. v. Euler Hermes American Credit Indemnity Co., et. al., 2009 U.S. Dist. LEXIS 94264 (N.D. Ill. Oct. 9, 2009), U.S. Magistrate Judge Michael T. Mason granted, in part, plaintiff's motion to compel and motion for sanctions for defendant's failure to identify potentially responsive documents, including electronically stored information.

In this insurance coverage case, plaintiff requested defendant Euler Hermes' underwriting and claims files, reference and training materials and marketing materials from 2003 to 2008.  In response, defendant, relying on F.R.C.P. 33(d) made certain documents available for inspection for a four-day period.  The inspection included nearly a quarter million pages of documents.  Plaintiff's requested a comprehensive index which defendant provided on the final day of plaintiff's document review.  Defendant ignored plaintiff's prior request for the indices and for access to defendant's electronic systems that may contain relevant information regarding the requested discovery.  Defendant's also failed to identify or produce any requested electronically stored information.

The court granted plaintiff's motion to compel the requested materials and further ruled that sanctions were appropriate given defendant's refusal to cooperate with plaintiff's discovery requests.  The sanctions included plaintiff's attorneys' fees in connection with the motion to compel, and the attorney review time expended by plaintiff prior to receiving defendant's document index.