Findings of Fact
1. This action was commenced with a return date of August 5, 2003 and was granted complex litigation docket status in August 2003.
2. The plaintiffs served Plaintiffs' First Request for Production of Documents dated November 21, 2003 (“First Request for Production” or “First Request”) consisting of 14 pages containing 35 separate requests for production of documents in the possession or control of the Hartford. Various terms were defined and detailed instructions for compliance were included. The compliance date was specified as thirty days from the date of service. The definition of the terms “Document” or “Documents” specifically included electronically stored writings: “all ‘writings' which includes without limitation, electronic or computerized data compilations (such as e-mail)”; “electronic mail”; “... hand-held computer organizer entry, Palm Pilot calendar, Blackberry ...; “... computer directory, computer disk, computer tape.” The time period coveted by the request was specified as January 1, 1994 through the date of response. The 35 document requests were comprehensive in scope, covering all aspects of the CUTPA violations alleged in the complaint, e.g.
“All documents, arranged by year, sufficient to identify gross revenues and profits generated by the Hartford in connection with its automobile insurance policies for vehicles registered in the State of Connecticut ...” (No. 1); “All memoranda, guidelines, procedures and policies relating to The Hartford's DRP program in the State of Connecticut ...” (No. 7); “All documents relating to any complaints or comments made by non DRPs concerning a) labor rates ...; b) reimbursement for work performed ...; and c) time allotted by the Hartford to perform specific categories of automobile physical damage repairs ...” (No. 15) “all business plans, strategic plans, and marketing analyses concerning automobile damage insurance policies ...” (No. 16) “All Documents relating to the Hartford's decision to create and continue its DRP Program ...” (No. 17); “All memoranda, guidelines, procedures and policies relating to appraisals for automobile physical damage repairs under The Hartford insurance policies ...” (No. 19); and “All documents relating to The Hartford's DRP labor rates ...” (No. 23).
3. On January 29, 2004 the defendant filed “Defendant's Objections to Plaintiffs' First Request for Production of Documents” (No. 113) in which it objected to certain definitions and instructions and the relevant time period in the First Request and interposed two general objections to all the 35 production requests followed by specific objections to 31 of the 35 requests for production made by plaintiffs.
*3 4. Thereafter, subject to and notwithstanding its objections the defendant provided a First Response to the First Request with certain produced documents on February 6, 2004, and a First Supplemental Response on March 3, 2004, with further produced documents. On March 10, 2004 Atty. Slossberg (representing the plaintiffs) wrote to Atty. Heath (representing the defendant) expressing concern that the defendant had only produced about 300 pages, and the agreed deadline for completion of document production, March 17, 2004 was approaching. Atty. Heath responded on March 17, 2004 saying that the defendant was in the process of getting out a subsequent response consisting of about 1,000 pages, Affidavit, Ex. 4). The defendant thereafter provided a Second Supplemental response on March 18, 2004 and a Third Supplemental Response on March 30, 2004.
5. On April 30, 2004 Atty. Slossberg wrote again to Atty. Heath that the total documents produced to that date “fit into one redwell” and, given the complexity of the issues and the number of potential involved parties, could not possibly represent “even a fraction” of the total relevant documents responsive to the First Request. The letter also specified the parts of the First Request as to which no documents at all had been produced, and certain claimed deficiencies with the First Response and the First, Second and Third Supplemental Responses. (Slossberg Affidavit, Ex. 7.)
6. The defendant thereafter provided a Fourth Supplemental Response on May 4, 2004 and a Fifth Supplemental response on May 14.2004. A Sixth Supplemental Response was provided on May 28, 2004 along with approximately 4,500 pages of additional documents.
7. On June 4, 2004 Atty. Slossberg wrote again to Atty. Heath about the nature and extent of the document production, noting “basic CRSP program documents” in the Sixth Supplemental response that, in his opinion, should have been produced earlier, and listing relevant documents referenced in but not produced with that response. (Slossberg Affidavit, Ex. 12.)
8. In July, 2004 the plaintiffs deposed four employees of the Hartford designated by the Hartford as knowledgeable persons regarding the search for documents responsive to the First Request for Production, including Willie Mack Dupriest, an IT person, and Martin Iverson, Vice President of the Auto Physical Damage Department, and learned that e-mails and other documents stored electronically on a central database had not been collected for purposes of responding to the plaintiffs' production request, not had any request been made that the central database be searched for responsive documents. (Slossberg Affidavit, Ex. 13.) Plaintiffs also learned from these witnesses the specific names or identifications of documents that would, in plaintiffs' view, be responsive to the First Request.
9. Atty. Aranoff e-mailed Atty. Heath on November 23, 2004, again expressing concern with the pace of compliance with the First Request for Production and suggesting that court intervention might have to be requested. (Slossberg Affidavit, Ex. 17.)
*4 10. The defendant provided its Seventh, Eight, Ninth and Tenth Supplemental Responses to the First Request in the fall of 2004.
11. On November 23, 2004 the plaintiffs served their Second Request for Production of Documents (“Second Request”) seeking 19 specific documents (or categories of documents) they had identified from references in the earlier productions or from the witnesses deposed in July 2004. Most, if not all, of the specific documents sought by the Second Request fell within the general categories requested in the First Request. On January 24, 2005 the defendant interposed general objections to the entire Second Request and specific objections to all 19 specific document requests, although it indicated in several instances that it would comply with certain requests notwithstanding its objections.
12. On December 3, 2004 the defendant provided its Eleventh Supplemental Response to the First Request, disclosing several boxes of documents.
13. During February and March of 2005, defendant continued to disclose documents as requested by the First Request and the Second Request. (Twelfth Supplemental Response to First request and First and First Supplemental Responses to Second Request.)
14. On April 15, 2005 Atty. Heath wrote to Atty. Slossberg and Atty. Aranoff (also representing plaintiffs), telling them that “The Hartford is making another final round of production available to the plaintiffs today, pursuant to the responses sent separately.” After mentioning certain specific items which would be slightly delayed, Atty. Heath concluded. “The only other open production issue concerns the few personnel files that The Hartford has been unable to locate despite diligent efforts to do so. At this point, The Hartford will discontinue its litigation-related efforts to find these files.” (Slossberg Affidavit, Ex. 23.) The defendant's Thirteenth Supplemental Response to the First Request and Second Supplemental response to the second request followed that letter. The production consisted of CD's containing electronic documents and also paper documents.
15. Plaintiff's counsel then started to notice substantive depositions of the Hartford's personnel. As each deposition was noticed the plaintiffs attached to the notice of deposition a request that the deponent produce certain documents particularly related to his or her role in the CRSP program which may have “fallen through the cracks” in the document production process. For instance, Lou Chasse was asked to bring to his deposition 17 categories of documents which, on review seem to the court in some instances to be the same documents or a subset or variation of the same documents requested in 2003 by the First Request for Production, e.g. No. 2: “all documents in the deponent's personal file relating to the CRSP program.” After the parties had consulted on appropriate search terms that request resulted in the production of approximately 25,000 pages a little more than a week before the Chasse deposition. The same pattern took place with respect to deponent Robert Lougherty (42,000 pages or 14 boxes of documents approximately one week before deposition) and deponent Martin Iverson (150,000 pages approximately 10 days prior). In all, seventeen substantive depositions of Hartford personnel were taken in 2005, and a total of more than 1 million additional pages of documents were disclosed pursuant to the production requests attached to the notices of deposition-all subsequent to the “final round” of disclosures in April 2005 and in the range of two years after the First Request for Production was served. Plaintiffs argue in their brief that these produced documents were “clearly responsive and should have been produced in response to plaintiffs' First Request for Production of Documents.”
*5 16. Piecemeal production of documents in response to deposition notices continued through the spring of 2006. (Slossberg Affidavit Ex. 32.)
17. On May 2, 2006 the plaintiffs served defendant with their Third Request for Production of Documents (Slossberg Affidavit, Ex. 33.) largely requesting with more specificity documents regarding the CRSP program that had been asked for in the earlier production requests, using document terms identified at depositions. Although the Hartford objected to each request, it agreed to produce certain of the requested documents.
18. Judge Adams filed his decision granting plaintiffs' motion for class certification on August 30, 2006 and thereafter denied defendant's motion to reargue. On October 24, 2006 the defendant appealed the granting of class certification. The appeal was decided on June 3, 2008 when the Supreme Court affirmed Judge Adams' decision. (287 Conn. 208, 947 A.2d 320.) Although this court had ruled that the appellate stay of Practice Book § 61-11 did not apply to discovery relating to the claims of the original named plaintiffs, and all discovery requests filed prior to the appeal had been filed only on behalf of those named plaintiffs, no documents were produced while the appeal was pending.
19. At a status conference before this court on June 10, 2008, the court entered by agreement a revised Case Management Order (CMO) No. 11 which included a deadline of August 29, 2008 for completion of fact discovery. Plaintiffs also requested at that status conference that the defendants supplement all previous document productions as required by Practice Book § 13-15.
20. On June 20, 2008 plaintiff's counsel sent to defendant's counsel a Fourth Set of Interrogatories and Production Requests, saying, in the cover letter, “Much, if not all, of what we seek was addressed in prior requests. For purposes of focus, however, we are serving the enclosed discovery.” (Slossberg Affidavit, Ex. 37.)
21. On August 15, 2008 Atty. Napp, representing the Hartford, wrote to Atty. Slossberg “regarding Hartford's supplemental discovery compliance.” (Slossberg Affidavit, Ex. 39.) She advised that the e-mail searches the Hartford was running could not be completed until October 1, 2008 and sought an extension until November 1, 2008 to complete document production.
22. On September 5, 2008 the parties moved jointly to extend the deadline for completion of fact discovery, and to adjust accordingly the deadlines for filing dispositive motions. The court granted that motion and entered CMO No. 12 on October 17, 2008 which extended the fact discovery deadline to November 3, 2008. Both parties had already filed motions for summary judgment, but the deadline for filing oppositions to summary judgment was extended to December 3, 2008 and replies by December 22, 2008.
23. On September 18, 2008 Atty. Napp wrote again to Atty. Slossberg (Ex. 40) admitting the Hartford's supplemental discovery compliance would include updates of documents last produced December 3, 2004, almost four years earlier.
*6 24. On October 2, October 17, and October 24, 2008, respectively, the defendant served its Fifteenth, Sixteenth and Seventeenth Supplemental Responses to Plaintiffs' First Request for Production of Documents, disclosing about 15,000 hard copy pages of documents.
25. On October 28, 2008, October 29, 2008, and November 14, 2008, respectively, the defendant served its Eighteenth, Nineteenth, and Twentieth Supplemental Responses to Plaintiffs' First request for Production of Documents, disclosing more than 1.3 million pages of documents, most of which were disclosed in electronic format. (Slossberg Affidavit, Ex. 42.)
26. In all, the Hartford disclosed 1,487,824 pages of documents during the months of October-November 2008 (Cirko Affidavit, 3) which equates to about 465 banker's boxes of documents. (Tr. 1/28/09 p. 18.)
27. Prior to the supplemental disclosures in the fall of 2008 the plaintiffs had taken twenty two depositions of active or retired personnel of the Hartford. (Slossberg Affidavit, Ex. 35.) By a letter of September 18, 2008 to Atty. Slossberg (Slossberg Affidavit, Ex. 40.) Atty. Napp stated that the Hartford would “supplement its previous production” to include performance evaluations of Automobile Service Representatives (ASRs), their supervisors and auditors “PPMs” and Fast Track Handlers, their supervisors and auditors, and auditors of CRSP shops, some of which, according to the letter, had been previously produced “up through December 3, 2004 or November 18, 2005.” A number of the documents were evaluations of Hartford personnel who had already been deposed. After review of the documents, re-depositions may be necessary.
28. Based on a sample review of about 20,000 pages of paper documents disclosed in October-November 2008, many documents are dated prior to July 2006. (Pre-last prior disclosure in October 2006.) (Cirko Affidavit, 3.)
29. Based on a sample review of about 1,000 pages or 250 documents disclosed electronically in October-November, 2008, many documents are dated prior to July 2006 (pre-last prior disclosure in October 2006) and the documents are not organized by type, date, author, or otherwise identified in any discernable way. (Cirko Affidavit 4, 5.)
30. The electronic documents disclosed in October-November 2008 were produced on hard drives and disks (Cirko Affidavit 4) in Tag Image File Format (TIFF) which is not searchable electronically. In order to avoid the necessity on an individual review of each of the documents produced, plaintiff's counsel (Bernstein, Liebhaard & Lifshitz, LLP) had the electronic disclosures converted to Optical Character Recognition (OCR) format at a cost of approximately $32,000 to enable some electronic word searches to be done. (Tr. 1/28/09, p. 18.)
31. Defendant argues that “most of the documents [produced by the Hartford] are immaterial” (Defendant's Memorandum, p. 3). This may be true to an extent, but the court finds, based on the sample review set forth in the Cirko affidavit ( 6 and Ex. E.) a significant number of the documents produced in October and November 2008 deal directly with the issues of this case, which means that all the produced documents must be searched or reviewed to locate all the material disclosures.
*7 Further findings of fact will be made in the following “discussion.”
Discussion and Conclusions of Law
The plaintiff asks that the court enter a default or, alternatively, other sanctions against the Hartford for dilatory and oppressive tactics in the manner and timing of its response to the plaintiffs' requests for production of documents, particularly the First Request served at the very outset of this lawsuit. Although compliance with that request came sporadically and piecemeal over a period of more than five years, the “sanctionable conduct” primarily relied upon by plaintiffs is stated in their memorandum of November 25, 2008 at p. 33, 947 A.2d 320:
The Hartford has had plaintiffs' requests for five years. After the passage of this considerable time and after making plaintiffs jump through all sorts of hoops to gain access to one million pages of documents, suddenly and without notice, defendant inexplicably dumped 1.4 million pages of new documents on plaintiffs in October and November 2008 after fact discovery and fact depositions had closed. The Hartford had an obligation to produce responsive documents long ago, before depositions, before expert disclosures, before summary judgment,
and during the class certification process, and simply failed to do so.
Practice Book § 13-14 gives the judicial authority the discretion to “make such order as the ends of justice require” when a party has “failed to respond to requests for production” or has failed to comply with the provisions of Section 13-15 [continuing duty to disclose] “or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11.” The first inquiry is whether or not the Hartford has failed to respond to requests for production or has failed to comply with its continuing duty to disclose under § 13-15. The court finds that it has so failed in both obligations. Although, as defendant points out, it did ultimately produce almost 2.5 million pages of documents by the final extended deadline of November 3, 2008 as set forth in the twelfth Case Management Order,
that document production and the increments in which it came forth did not represent a good faith effort of the defendant to comply with the rules of practice or the case management orders of this court. As said by Judge Robinson in Asztalos v. Stop & Shop Supermarkets, Docket No. CV99-0263111S, Superior Court (March 14, 2000), 2000 WL 327450 (Conn.Super.) at *3-4:
The appellate courts of Connecticut have mandated that “careful attention must be paid to the prompt and orderly handling of discovery. Trial courts should not countenance unnecessary delays in discovery and should unhesitatingly impose sanctions proportionate to the circumstances.” Osborne v. Osborne, 2 Conn.App. 635, 637, 482 A.2d 77 (1984). See also Biro v. Hill,
237 Conn. 462 (1994), (affirming the granting of a nonsuit based on plaintiff's failure to comply with three previously entered deadlines for compliance); and Ellis v. Ronning, 11 Conn.App. 662, 528 A.2d 1174, (1987) (affirming entry of nonsuit based on plaintiff's failure to complete interrogatories) ... This court finds that the failure to provide timely production of discovery information, despite ample opportunity to do so, violated § 13-14(a) of the Practice Book.
*8 The specific disregard of defendant's duty and continuing duty to disclose can be traced to its failure to establish an effective and comprehensive method of identifying, finding and disclosing within a reasonable time the documents requested by the plaintiffs, especially e-mails and electronic documents, while at the same time giving the plaintiffs reason to believe to its prejudice that the sporadic piecemeal compliance that was provided represented all the responsive documents that could be found. As the court has found (No. 4, above) Atty. Heath wrote to Atty. Slossberg on March 17, 2004 saying
... The Hartford's responses have been comprehensive and complete [and] has required considerable time and effort by a number of employees in different offices and areas of the Hartford. As Ron Aranoff [also representing the plaintiffs] and I discussed yesterday, the Hartford is completing its third round of production in response to the plaintiff's document requests today; however, although today's production consists of approximately 1,000 pages of documents, there are a few employees who still need to complete reviews of their files for documents responsive to several requests, including those pertaining to human resource documents and documents exchanged with government entities. I expect to be able to produce these remaining documents by Tuesday, March 30, 2004. (Slossberg Affidavit, Ex. 4.)
Prior to that letter the defendant had produced about 300 pages of documents. The “third round of production” referenced in the letter was actually the “Second Supplemental Response” dated March 18, 2004, consisting of the 1,000 pages promised by Atty. Heath. Then there was a “Third Supplemental Response” made on the promised date of March 30, 2004 consisting of about 237 pages of documents (from the court's counting of the Bates numbers; Slossberg Affidavit, Ex 6). With those 1,537 pages (as it turned out), referenced in the March 17, letter, the clear impression any reasonable recipient would get is that document discovery was complete. In fact, it took four and a half years and more than 2.4 million additional pages of documents to complete the disclosure process.
In a very similar situation in Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees and restaurant Employees International Union, 212 F.R.D. 178 (S.D.N.Y.2003), the court entered a default judgment against defendant as a sanction for the failure of defendant and its lawyers to search for and produce documents, repeated representations that all documents had been produced, when they had not, and the failure of the defendant and its counsel to comply with their discovery obligations, the court saying:
The [defendant's] various discovery omissions are directly attributable the failure of defendant and its counsel to establish a coherent and effective system to faithfully and effectively respond to discovery requests ... [T]he defendant employed an unconsciously careless procedure to handle discovery matters, suggesting callous disregard for its obligations as a litigant.
* * *
*9 The court concludes that defendant and its counsel failed in a variety of instances to conduct any reasonable inquiry into the factual basis of its discovery responses ... Such an inquiry would have required, at a minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the defendant potentially possessing responsive information, and to account for the collection and subsequent production of the information to plaintiffs. Id.
at 221 (quoting from National Association of Radiation Survivors v. Turnage,
115, F.R.D. 543, 556 (N.D.Cal.1987).
And in another similar case, Fuqua v. Horizon/CMS/Healthcare Corporations, 199 F.R.D. 200 (N.D.Tex., 2000), the court ordered sanctions (default judgment on liability plus an award of counsel fees) against a defendant which had consistently attempted to thwart plaintiffs' discovery efforts despite court orders compelling discovery, and failed until months after the end of the original discovery period to review or disclose the existence of more than 15,000 boxes of documents containing items that were potentially responsive earlier discovery requests. See also Thompson v. United States Department of Housing and Urban Development,
109 F.R .D. 93, (D.Md.2003) (Sanctions precluding the testimony of witnesses awarded for failure of defendants to produce 80,000 responsive e-mail records until long after discovery cut-off deadline.)
Defendant's explanations and protests against sanctions are unpersuasive. The affidavit of Craig A. Raabe, Esq. recites that the plaintiffs requested e-mails as part of their Second Request for Production of Documents dated November 3, 2004. But, as the court has found, (Finding No. 2, above) the First Request for Production served a year earlier in November 2003 clearly calls for the production of all documents in general categories including specific references to electronically stored writings: “electronic or computerized data compilations (such as e-mail)” and “electronic mail.” The search for e-mails should have started a whole year earlier than Atty. Raabe's electronic starting point. He also blames the plaintiffs for suggesting “overly broad” search terms, which yielded “a tremendous amount of extraneous and irrelevant information.” A similar attempt to blame the requesting party was rejected in Metropolitan Opera Association, supra,
The client is charged with knowledge of what documents it possesses. It was not their option to simply react to plaintiff's fortuitous discovery of the existence of relevant documents by making disjointed searches, each time representing that that was all they had. Under the federal rules, the burden does not fall on plaintiffs to learn whether, how, and where defendant keeps relevant documents.
If the search terms
agreed to by the parties turned up both relevant and irrelevant or responsive and unresponsive documents, it was incumbent on the defendant either not to disclose the irrelevant documents, or to isolate them and disclose them separately, thereby relieving the plaintiff of the need to sift through 1.4 million pages to separate the wheat from the chaff, or to seek judicial intervention. The defendants on January 29, 2004 had filed extensive general and specific objections to the First Request for Production of Documents. (Finding No. 3, above.) Thereafter the defendant over five years provided twenty-one responses to that First Request, repeating the objections over and over, but indicating that it was making certain disclosures “notwithstanding” those objections, none of which have ever been pressed in court. If the search terms suggested by plaintiffs called for the production of unresponsive documents, the defendant had a readily available remedy to seek judicial intervention to narrow the search terms or to excuse the production of unresponsive documents, but totally failed to take advantage of that remedy.
*10 The December 2008 affidavits of Richard Uliaz, Assistant Director, Response to Litigation (“RTL”) in the Information Technology (“IT”) Department of the Hartford, and of Andrew H. Pinkowski, Esq., Counsel in the Litigation Unit of the Law Department of the Hartford describe a search process whereby the Hartford's IT Department-with access to databases, servers, and backup systems-was responsible for the collection and production of electronic documents responsive to plaintiffs' production requests, rather than have each employee conduct an individual search for responsive e-mails. These affidavits are in part responsive to the plaintiffs' reliance on the deposition testimony given in 2005 by Robert Lougherty and other Hartford employees that they had not been asked by the Law Department to search for their e-mails requested by the plaintiffs. The centralized search by the IT Department was not, however, the search process in effect at all times. When Atty. Heath wrote to Atty. Slossberg on March 17, 2004 the clear indication was that the Hartford needed only a few more weeks to complete document production saying only that “... there are a few employees who still need to complete reviews of their files for the documents responsive to several requests ...” (Finding No. 4, above). There was no mention of any centralized IT Department search. The Uliaz and Pinkowski affidavits are notably vague about when the centralized search commenced. Pargraph 4 of Atty. Pinkowski's affidavit indicates that the centralized search was decided upon after reviewing the document requests in the plaintiffs' notices of deposition, which were issued in 2005 after approximately two years of litigation and some thirteen responses had made to the plaintiffs' documents requests. In any event the Uliaz-Pinkowski affidavits do not adequately address or explain why the IT search process failed to locate until October or November 2008 so many e-mails and other electronic documents, including many that predated the earlier disclosures by the Hartford.
The court concludes for the reasons discussed that the Hartford's response to plaintiffs' production requests, particularly the disclosure of 1.4 million pages on November 14, 2008, is sanctionable misconduct. The inquiry then becomes what appropriate sanction would best serve “the ends of justice” as required by Practice Book § 13-14(a) or the inherent authority of this court to supervise litigation. Factors to be considered by the court include: (1) whether noncompliance was caused by inability, rather than willfulness, bad faith or other fault; (2) whether and to what extent noncompliance caused prejudice to the other party, including the importance of the information sought to that party's case; and (3) and which sanction would, under the circumstances of the case, be an appropriate judicial response to the noncomplying party's conduct. Millbrook Owners Association, Inc. v. Hamilton Standard, 257 Conn. 1, 15, 776 A.2d 1115 (2001). Based on the totality of circumstances the court concludes that the Hartford's disclosure violations were not caused by inability. It had outside counsel, in-house counsel, and the technical expertise of its RTL team. The unexplained failure for so long to locate and disclose so many e-mails and other electronic documents was caused in my view by the Hartford's “... unconscionably careless procedure to handle discovery matters, suggesting a callous disregard for its obligations as a litigant.” Turnage, supra,
at 556. The court also concludes that the late disclosure of 1.4 million pages of electronic documents has prejudiced the plaintiffs in that those documents were not available at the time plaintiff took more than twenty substantive depositions of employees of the Hartford in and after 2005 and not available at the time plaintiff filed its motion for partial summary judgment, and in that plaintiffs' counsel must go through the exhaustive process in the final months before trial of reviewing all these produced documents to evaluate their significance. The court cannot make a comprehensive conclusion as to the ultimate importance of the 1.4 million pages to the plaintiffs' case, but, based on the sampling described in the Katharina Cirko affidavit, there is enough indication of relevance and importance that due diligence would demand a thorough review and evaluation of all the documents. As the court will discuss below, some of this prejudice is not irreparable, but there is nonetheless significant prejudice to be addressed by appropriate sanctions.
*11 The ultimate sanction of dismissal (or default) should be imposed “... only as a last resort and where it would be the only reasonable remedy available to vindicate the legitimate interests of the other party and the court.” Millbrook, supra, at 17, 776 A.2d 1115, quoting from Pietraroia v. Northeast Utilities, 254 Conn. 60, 75, 756 A.2d 845 (2000). The court concludes for several reasons that a default against the Hartford is not the only reasonable remedy to vindicate the prejudice suffered by the plaintiffs and the interests of the court. First of all, although it took five years and many extensions of the deadlines, the Hartford did ultimately comply with the plaintiffs' production requests at a time about seven months before the scheduled trial date, or at least there is no claim to the contrary. The many extensions, although granted after the Hartford had repeatedly indicated for several years that full compliance was just around the corner, were consensual extensions. Although the plaintiffs had legitimate reason to believe that compliance was incomplete as expressed in the letters of Atty. Slossberg and Atty. Aranoff, no motion to compel or no complaint questioning the adequacy of the Hartford's search process was brought before the court. And the plaintiffs-at significant expense-were able to convert the 1.4 million pages to a searchable format which should lighten to some extent the effort required to review the documents and prepare for trial.
Practice Book § 13-14(b) has a non-exclusive list of four possible sanctions other than nonsuit or default. One of them-dismissal-applies only to a plaintiff. Two of the other three possible sanctions on that list are inappropriate to the circumstances of this case in my view. The “entry of an order that the matters regarding which discovery was sought or other designated facts shall be taken to be established ...” (§ 13-14(b)(3)) would be in this instance of the same magnitude as a default sanction of last resort because the plaintiffs' discovery requests, particularly the First Request to which the 1.4 million pages responded, were very comprehensive, covering all the allegations of the complaint. It would be inappropriate for the same reason that a default would be inappropriate. The same would be true of an order to vacate the defendant's answer and special defenses. Nor would it be appropriate to enter an order under § 13-14(b)(4) prohibiting the Hartford from introducing designated matters into evidence without knowing the contents of the documents in question, whether or to what extent they are relevant and material to the issues, and whether or to what extent they are duplicative of earlier-disclosed documents.