Pearl MARKHAM, et al., Plaintiffs, v. NATIONAL STATES INSURANCE COMPANY, Defendant No. Civ.02–1606–F United States District Court, W.D. Oklahoma January 08, 2004 Counsel Steven S. Mansell, Mark A. Engel, Steven S. Ashmore, Mansell & Engel PC, Oklahoma City, OK, for Plaintiffs. Terry S. O'Donnell, Russell M. Jacobson, Jr., Best & Sharp, Tulsa, OK, for Defendant. Friot, Stephen P., United States District Judge ORDER *1 At issue before the court is Plaintiffs' Motion for Sanctions, filed on September 16, 2003 (docket entry no. 93). Defendant responded to the motion on October 6, 2003. I. Introduction The plaintiffs are the children of Evaline Wright, deceased. Before she died, Mrs. Wright purchased a small life insurance policy from the defendant, National States Insurance Company (“National States”). The policy, of the type commonly called a burial policy, was purchased in order to provide a source of funds for Mrs. Wright's funeral. After Mrs. Wright died, the defendant refused to pay the death claim and rescinded the policy on the ground that Mrs. Wright had misrepresented the state of her health when she applied for the life insurance policy in August, 2000. Plaintiffs filed the complaint in this action in November, 2002. The complaint asserted claims for breach of duty of good faith and fair dealing and for false representation and deceit. Complaint, pp. 1 and 3. No breach of contract claim was asserted. The case was tried to a jury in August, 2003. In the weeks before trial, it was necessary for the court to address certain discovery matters which are discussed in detail below. The thrust of plaintiffs' case is succinctly stated in the first sentence of their trial brief: “This case involves an intentional, established and abusive rescission practice of the defendant which operates contrary to established insurance law to deprive elderly insureds of their policy benefits.” Plaintiffs' trial brief, at 1. The defendant asserted that, after Mrs. Wright died, it determined in good faith that she had misrepresented her health when she applied for the policy and that, consequently, it was appropriate to rescind the policy and return the premiums. The jury agreed with the plaintiffs. The jury awarded $25,000 to each of the three plaintiffs by way of compensatory damages. The jury found, by clear and convincing evidence, that National States Insurance Company recklessly disregarded its duty to act in good faith and deal fairly with the plaintiffs. The jury also found that defendant intentionally and with malice breached its duty of good faith. Having so found, the jury awarded an additional $150,000 to the plaintiffs as punitive damages. Accordingly, on September 2, 2003, the court entered judgment against the defendant for the total amount of the award, $225,000. As will be seen, some aspects of the discovery compliance matters which were addressed before trial could not be resolved in all respects before, or even during, the trial. For that reason, the court informed the parties at the outset of the trial that it would consider sanctions against defendant as a post-judgment matter. Tr. 36, 42.[1] The court now determines some of the issues raised by the motion for sanctions which was filed on September 16, 2003. As will be seen, other issues will be determined in due course. II. Events Leading to the July 22 Order. *2 Plaintiffs filed a motion to compel discovery on July 3, 2003 (docket entry no. 22). As the court has previously observed, plaintiffs could have and perhaps should have filed their motion to compel earlier than July, 2003, the month before the trial docket in this case. However, the late filing of the motion to compel does not go to the heart of the matter now before the court. In considering the motion for sanctions, the court has been mindful of the compressed interval in which events unfolded after Magistrate Judge Gary M. Purcell ruled on the motion to compel on July 22, 2003. Although this order does not (and need not) revisit any issues raised by the motion to compel, the issues which are addressed in this order should be considered against the backdrop of the discovery activity which culminated in Judge Purcell's July 22 order, which granted the motion to compel in all respects material to the matters considered in this order. The motion to compel involved, as relevant here, plaintiffs' interrogatory no. 9 and plaintiffs' document requests 6 and 14. In interrogatory no. 9, plaintiffs asked defendant to “identify all life insurance policies rescinded by defendant in the last five years, providing the date of rescission, reason given for rescission, state of residence of insured, effective date of policy, and face amount of the policy.” Motion to Compel, at 12—13. The defendant objected to this interrogatory on the ground that it was vague, ambiguous, overly broad, and seeks information which is neither relevant nor likely to lead to the discovery of admissible evidence. Request for production no. 6 related to litigation. It requested that the defendant produce “[a] list of all lawsuits filed against defendant over the last five years giving the case name and number, name and address of plaintiff's counsel and the county and state of filing. This can be answered by producing copies of all complaints and petitions filed against defendant for the last five years.” Id. at 13. Defendant responded that this request was “overly broad, unduly burdensome, and neither relevant nor likely to lead to the discovery of admissible evidence. Furthermore, such information is in the public domain and equally available to plaintiffs.” Id. Request no. 14 called upon defendant to produce “all claim files for all life insurance policy rescissions by the defendant for the last five years.” Id. at 14. Defendant responded to this request by stating that it was “overly broad, unduly burdensome and seeks information which is neither relevant nor likely to lead to the discovery of admissible evidence.” Id. Although the issues resolved by Judge Purcell are not revisited here, the court's determination of the present motion rests in part on an assessment of the defendant's overall disposition to comply with its discovery obligations. For that reason, it is worth noting at this point that, at least since the Tenth Circuit handed down its decision in Vining v. Enterprise Financial Group, Inc., 148 F.3d 1206 (10th Cir.1998), there has been no room for doubt that the plaintiff in a bad faith case involving a rescinded life insurance policy is entitled to support his bad faith claim, at least in part, by proving a “deliberate, willful pattern of abusive conduct by [the insurer] in handling claims under its life insurance policies.” Vining at 1214. Thus, although defendant's initial, seemingly pro forma, objections to interrogatory no. 9 and document request nos. 6 and 14 did not differ radically from commonly-encountered practice, it is clear that the legal framework in which that discovery was sought and objected to was not conducive to steadfast opposition by defendant. In fact, it would not be unfair to observe that the Vining case, involving, as it did, the attorneys who represent the plaintiffs in this case, put defendant on notice, from the day the discovery was originally sought in this case, that it would be prudent to prepare to produce substantial quantities of records relating to its rescission practices. *3 With respect to request no. 6, it is noteworthy, as will be seen, that defendant's response did not suggest that the first prong of the alternative request (requesting a list) amounted to an improper use of a Rule 34 request. It should also be noted that defendant's response did not assert that no such list existed. Defendant's response to the motion to compel (docket entry no. 32) was no more promising than were its original responses to the interrogatories and document requests. Defendant began its argument by asserting that the information sought “is clearly irrelevant to the breach of contract portion of plaintiffs' claims.” Response, at unnumbered p. 2. The plaintiffs never asserted a breach of contract claim in this action. Later in the response, defendant continued to assert, as relevant to interrogatory no. 9 and request no. 6, that the information sought was irrelevant, even in the broad discovery sense. With respect to request no. 14, defendant's response to the motion to compel asserted that “if the personal information contained in those [rescission] files was redacted as suggested by plaintiff, the information would only reflect numbers.” Response, at unnumbered p. 6. This response was as disingenuous as it was untenable, because plaintiffs did not suggest redacting “personal information.” Plaintiffs suggested redaction of personal identifying information, which would leave available (consistent with Vining ) the relevant information as to the basis for rescission, viewed in light of the defendant's underwriting practices. Defendant's response to request no. 14 also suggested that there be some limitations on the scope of production of rescission files, thus clearly indicating that defendant correctly anticipated (and had good reason to expect) that it would be required to produce rescission files. As to request no. 6 (which sought a list of all lawsuits filed against defendant in the last five years or, alternatively, copies of all complaints and petitions filed against defendant in the last five years), defendant's response asserted (in addition to its original overbreadth, burdensomeness, and relevance objections) that the information is available in the public domain “and equally available to plaintiffs,” and that it “does not possess such a list responsive to this request and does not have copies of complaints and petitions as requested.” Defendant's response, at unnumbered p. 4 (emphasis added). Defendant concluded, on this point, by asserting that it would be unduly burdensome for it to “conduct a search of the public records, when the same avenue is available to plaintiffs, especially with the five year period of time requested.” Id. at unnumbered pp. 4–5. As will be seen, this response was highly disingenuous. The hearing before Judge Purcell on July 22 was brief. The court has listened to the tape of the hearing. The minute order which resulted from the hearing is entirely consonant with the comments of counsel and of Judge Purcell at the hearing. In brief, Judge Purcell granted the motion to compel as to interrogatory no. 9 and document request nos. 6 and 14, with the proviso, as interrogatory no. 9 and request no. 14, that “all personal identifiers (name, address, phone, SSN) shall be redacted.” July 22 courtroom minute (docket entry no. 33). Being conscious of the August trial date, Judge Purcell also directed that “[d]efendant shall comply herewith by August 6, 2003.” No appeal was taken from Judge Purcell's ruling. *4 As of the close of the proceedings before Judge Purcell on July 22, the status of the matter was that defendant was required to identify all of its life insurance policy rescissions in the last five years, produce a list of (or copies of the initial pleadings from) all lawsuits filed against it in the last five years, and produce its claim files for rescinded policies for the last five years. This was to be done by August 6. III. Defendant's Conduct Subsequent to the July 22 Order. Evaluation of the defendant's conduct after entry of the July 22 order requires an understanding of the identities of some of the individuals who were involved in the post-July 22 discovery compliance activities. William Morrison is defendant's vice president of administration. In that capacity, he is in charge of all of defendant's “operations or administration, other than accounting and data processing.” Morrison August 14 depo. at 7.[2] Michael Scott is an assistant vice president of defendant, assigned to the claim department. Scott depo. at 5. Mr. Scott is “the principal liaison with defense counsel in connection with the handling of this case.” Id. Terrance Moffitt is an associate with the law firm of Thomas R. Green. Moffitt depo. at 4. This law firm functions as defendant's general counsel. Id. at 6. Thomas R. Green, in addition to being a lawyer, is the president of National States. Id. at 4. The Thomas R. Green Law Firm has its offices in the same building as National States Insurance Company. Id. at 5. A. Production of the rescission list and the rescission files. Mr. Scott had substantial involvement with defendant's activities vis-a-vis the July 22 order. July 22, 2003 was a Tuesday. When he was deposed on August 14, 2003, Mr. Scott was not even sure whether he spoke with Mr. Morrison about the July 22 order that week or the following week (of July 27). Scott depo. at 26–27. Mr. Scott is fairly certain that, late in the week that the July 22 order was entered, he had a preliminary conversation with defendant's “computer guy.” Id. at 28–29. This would have been before Mr. Scott's initial conversation with Mr. Morrison. Id. at 29. Although Mr. Scott evidently did nothing by way of compliance with the July 22 order that week other than have his conversation with Mr. Hartig, the “computer guy,” the conversation Mr. Scott had with Mr. Hartig was significant. It was significant because Mr. Scott learned in his initial conversation with Mr. Hartig that, save for the health-related reason for the rescission, the rest of the information necessary for the generation of a rescission list was available in the computer system. Id. at 30. This was evidently Mr. Scott's last conversation with Mr. Hartig about compliance with the July 22 order. Id. at 34–35. Mr. Scott was also aware that the compilation of the rescission list was important, because plaintiffs' counsel had agreed that the actual production of rescission files would be limited to a sample of 50 files selected from the rescission list. Id. at 45. See also, plaintiffs' counsel's July 28, 2003 letter to defendant's counsel, at 3 (exhibit 5 to the motion for sanctions). Plaintiffs' counsel made it clear to defendant that, one way or another, it was important to produce the list promptly, even if the list did not include all of the necessary information. Plaintiff's counsel explained to defendant that even if the list was not confined to actual rescissions, additional files could be designated for production and copying (in addition to the agreed upon 50) so that a total of 50 actual rescission files could ultimately be produced after elimination of non-rescission files. July 28 letter, at 3. *5 On August 5, 2003, Mr. Scott signed an affidavit which was annexed to an application filed by defendant in which defendant sought an extension of time to comply with the July 22 order. See docket entry no. 50. In his affidavit, Mr. Scott stated that the “software systems National States Insurance Company uses do not have the capability of generating a list of rescissions.” Affidavit, ¶ 3. He also stated that, in order to “extract data from the computer files so that a list of rescissions can be generated, it is necessary to write a custom computer program.” He concluded by saying that defendant will be unable to meet the August 6 deadline and that he would estimate that the rescission list can be obtained “sometime the week of August 11, 2003, with a possibility of producing the list by August 11, 2003.” Id., ¶¶ 6 and 7. As has been noted, when Mr. Scott was deposed nine days later (on August 14) as authorized by the court, it became clear that the only snag in producing the rescission list was the inclusion of the health-related reason for the rescission. Scott depo. at 30. The rest of the information could be retrieved using the computer system. Id. Mr. Scott's misleading denial of the ability to generate a list of rescissions was carried over into defendant's August 5 application for an extension of time, where defendant stated categorically that “[t]he information plaintiffs seek, specifically a list of rescissions, is not information readily available on defendant's computer system.” Application at ¶ 13. Not disclosed either in Mr. Scott's affidavit or in the motion was the fact that Mr. Scott had not discussed the matter with Mr. Hartig since approximately 10 days before. Scott depo. at 34–35. It should be noted, also, that at the time Mr. Scott signed his affidavit with his forecast that the rescission list could be obtained “some time the week of August 11, 2003, with a possibility of producing the list by August 11, 2003,” this action was set for trial on August 11. (As it happened, jury selection took place on August 11, but the trial did not begin until August 18. This schedule was not known to the parties to this action until the court's docket call on August 6.) Thus, Mr. Scott, having not discussed the matter with Mr. Hartig within the preceding 10 days, and having provided a misleadingly pessimistic forecast to the court as to the prospects for producing the rescission list, painted a picture suggesting that not even the list—to say nothing of the files themselves—could be produced until the week that the trial was then scheduled to begin. On Friday, August 8, the court denied defendant's August 5 application to extend time to comply with the July 22 order. In the court's August 8 order, the court observed that: However, it is apparent to the court from the application, from the statements made by counsel at the docket call, and from the proposed order which was submitted with the application, that the “compliance” which defendant contemplates is simply the delivery of a list of rescissions. That would not constitute compliance with Judge Purcell's order wherein plaintiff's motion to compel was granted as to request for production no. 6, interrogatory no. 9 and requests for production nos. 8, 10, 13 and 14 (with the exception of redactions of personal identifiers). *6 Accordingly, the application was denied. In the August 8 order, the court also scheduled a hearing for 9:00 a.m. on August 18 (the morning the trial would begin) with respect to the status of defendant's compliance with the July 22 order, the reasons for any noncompliance and the remedial or other measures to be taken as a result of any noncompliance. Order, at 2. The court also authorized plaintiffs to conduct a Rule 30(b)(6) deposition of the defendant with respect to the matters to be addressed at the August 18 hearing and directed the defendant to file detailed written reports as to the status of defendant's compliance with the July 22 order, the reports to be signed by an officer of the defendant, on August 11, August 13 and August 15, 2003. Id. at 2–3. Late in the day on August 8, the court having earlier that day denied defendant's application for extension of time, the defendant faxed the list of rescissions to plaintiffs' counsel in fax transmissions which occurred at 4:29 p.m. and 4:51 p.m. See report at docket entry no. 66, ¶ 2. Slightly more than an hour after the second fax transmission to plaintiffs' counsel, plaintiffs' counsel faxed to defendant's counsel the designation of 50 claim files for production. Id. at ¶ 3. This list was faxed by defendant's counsel to defendant early on August 11. Id. at ¶ 4. Thus, on August 11, five days after the files were ordered to be produced but one week before the trial actually began, the defendant had in hand a designation which it could have used to immediately retrieve the 50 rescission files. On the same day, August 11, plaintiffs' counsel faxed a letter to defendant's counsel requesting that the first 15 or 20 rescission files be produced “as soon as they are ready,” requesting also that production of at least some files not be delayed until all 50 became available, and requesting finally that all files be made available at least by Thursday, August 14. See August 11, 2003 letter, exhibit 5 to motion to compel. On August 13, 2003, defendant's counsel notified plaintiffs' counsel that defendant had retrieved the rescission files and that they “are now available for inspection and copying at National States offices in St. Louis.” August 13 letter, exhibit 3 to motion to compel.[3] Although defendant had not been directed to produce the files in Oklahoma City (and was not otherwise required to do so), it is noteworthy that the defendant, then being a full week late in producing the files, was content to tell plaintiffs' counsel to come get the files in St. Louis. But it got worse. The files were not really available on August 13. As will be remembered, Mr. Morrison was deposed on August 14.[4] It was not until August 14, apparently during the taking of Mr. Morrison's deposition on that day, that Mr. Green, the president of the defendant, agreed to permit the files to leave the company premises to be copied by a commercial copy shop. Morrison August 14 depo. at 32–33. In defendant's third report (dated August 15 and filed on August 18, 2003 as docket entry no. 73), defendant reported that plaintiffs copied approximately half of the rescission claim files on August 14 (a Thursday) and that: “As of this time, on August 15, 2003, the plaintiff is in the process of copying the other half of the rescission claim files.” Third report (docket entry no. 73), ¶¶ 1 and 2. Although that report certainly suggested that all was well with respect to the rescission files as of August 15, that was certainly not the case. When this action was called for trial on Monday, August 18, 16 of the rescission files still had not been delivered to the plaintiffs. Tr., p. 4. The files which had not been copied and delivered had apparently been retrieved from the copy service for the weekend, with no one at the defendant's home office having been sufficiently concerned about the matter to supervise the copying of the files over the weekend even though the defendant was then 10 days delinquent in producing the files. Tr., p. 5. Upon being confronted with this information, counsel for defendant could only offer the lame comment that “at this particular point, I don't know what the status is on those 16 files.” Id. The court informed defendant's counsel that if the remaining files were not delivered by 8:00 that night, there “will be consequences that could affect the outcome of the lawsuit.” Tr., p. 12. The court was informed at the conclusion of the proceedings on Monday, August 18 that the remainder of the files had been copied, had arrived in Oklahoma City from St. Louis and would immediately be made available to the plaintiffs. Tr., p. 190–91. *7 Thus, files which had been ordered to be produced (and could have been produced) not later than August 6 were not produced until the evening of August 18, after the first full day of the trial. Although the court could have taken action at that point which might have seriously affected defendant's ability to defend on the merits, the court went no further than to inform counsel that sanctions may be considered post-judgment. Tr., pp. 35, 36, and 42. B. Production of the information as to pending and past litigation. Judge Purcell's July 22 order also required defendant to comply with request no. 6 of plaintiffs' Rule 34 requests. As has been discussed, request no. 6 was framed as an alternative request which required defendant to produce a list of all lawsuits against it during the preceding five years (which was technically deficient as a Rule 34 request if no such list actually existed as such), or produce copies of all complaints and petitions filed against defendant during the preceding five years. If scrutiny of defendant's conduct with respect to the rescission files leaves any doubt as to defendant's intent simply to stonewall its discovery obligations, scrutiny of defendant's conduct with respect to request no. 6 removes all doubt. August 6, the due date under the July 22 order, came and went with no semblance of compliance with Judge Purcell's order. Nothing was produced either as to pending or previous litigation. On Monday, August 11, plaintiffs' counsel pointed out to defendant's counsel the absurdity of this state of affairs: With regard to other lawsuits, it is difficult to conceive that this company does not know what lawsuits are presently pending against the company and these lawsuits should be immediately identified. There is no excuse for not having produced, at least, those lawsuits by the date designated in the Court's Order of August 6, 2003. Additionally, there are a number of ways for the Defendant to identify past cases. It is required to address its cases in connection with annual accounting and annual statements. It would have specific ledger accounts that identified where it had hired outside counsel to represent Defendant in cases. Defendant cannot comply with its regulatory requirements and still be completely unable to identify the cases that had been filed against it. To the extent that it is not in compliance with such regulations, there are a number of different ways that Defendant can identify lawsuits. Defendant should immediately provide those cases that can be easily identified today, and begin work to identify the others and explain its actions in order to comply. August 11, 2003 letter from Engel to Jacobson (exhibit 5 to motion for sanctions). Three days after the August 11 letter from plaintiffs' counsel to defendant's counsel, Mr. Scott was deposed. In considering the testimony of Mr. Scott and his colleagues at National States on this subject, it should be borne in mind that, as has been noted (see p. 7, above), defendant's president was also the head of the law firm which served as defendant's general counsel. The law firm's offices were located in the same building as defendant's headquarters. Mr. Scott testified that it never occurred to him to contact general counsel to get lawsuit-related materials with which to comply with request no. 6. Scott depo. at 66. He admitted that he had had no conversation at all with general counsel “with regard to the company's complying with producing a list of lawsuits.” Id. at 66–67. Professing to believe that it was simply not possible to comply with request no. 6, Mr. Scott took no action at all to comply with that request. Id. at 68–70. *8 In contrast to the impression Mr. Scott sought to convey with his testimony, Mr. Morrison's testimony left little doubt that he understood that general counsel would have files on lawsuits against National States. Morrison September 9 depo. at 44–45. He quite sensibly testified that if requested to produce a list of other lawsuits, “I wouldn't know how else to go about it other than to ask general counsel.” Id. at 48–49. Nevertheless, on the morning the trial started, the only thing that had been provided was a list of pending lawsuits: The other thing from the plaintiff, Your Honor, was the information regarding other lawsuits. And frankly, at this point in the litigation, that's so that we can see and try to establish if they've been aware of their wrongdoing in this rescission practice in the past and if they've been called on it before. And obviously that information at this late date is not very usable, but the evidence before the Court obviously was that they made no effort whatsoever to even go—their testimony was he didn't even go ask the general counsel if they had files where they could try to generate the list. And it's just ridiculous. Now, this morning they show—on their arrival here at the conference, they have a list of pending lawsuits that they've produced. And, of course, there's no reason why now they are just now able to comply with the Court's order as opposed to before. But again there is no legitimate basis for why they haven't complied with the court's order. THE COURT: So you have provided a list of pending lawsuits. MR. ENGEL: About ten minutes ago. Tr., p. 32 (emphasis added). After being informed of the status of defendant's compliance with respect to request no. 6, plaintiff's counsel had the following colloquy with the court: And I said it's inconceivable that a company can't figure out what lawsuits are at least pending against it now, much less what has pended against them in the past. They have to report it to their accountant, they have to do it for all kinds of financial statements. THE COURT: That would certainly be inconsistent with my experience in 29 years in the practice of law. MR. ENGEL: Can't figure out your lawsuits? THE COURT: If for no other reasons, an annual list of pending litigation has to be prepared for any number of audit and other reporting-related reasons. Tr., p. 35. It was obviously too late, on the first day of trial, to direct that defendant bring itself into compliance with request no. 6, but, anticipating post-trial consideration of the consequences of defendant's failure to comply with the July 22 order, the court directed as follows: Lest there be any doubt, the defendant is directed to produce to the plaintiff within ten days from this date, either as requested by Request Number 6, either a list of all lawsuits filed against defendant during the five years preceding the date of service of that request or as indicated by Request Number 6 as an acceptable alternative, copies of all complaints and petitions filed against the defendant during that five-year period. *9 Tr., p. 36. Near the conclusion of the discussion of this topic on the first day of the trial, defendant's counsel relayed to the court the state of facts, as represented by the defendant, which the defendant apparently wanted the court to believe: MR. JACOBSON: Your Honor, my understanding is that National States does not have a list of lawsuits and it certainly does not keep copies of the pleadings filed in the cases from my understanding. THE COURT: Not even the complaint or petition? MR. JACOBSON: No, your Honor. THE COURT: Going back five years, that would make this company totally unique in my 31 years of experience. Tr., p. 37. The colloquy on this subject was concluded with the following comment by the court: I went too many years preparing annual letters to accountants listing all pending lawsuits to be able to swallow the idea that the producing a list of lawsuits or otherwise identifying lawsuits pending against the defendant within the five years before this request was served is something that just was not doable.[5] That defies credulity. Tr. p. 43. The task of preparing a list of past lawsuits post-trial, as directed by the court, was not complicated. It is equally clear from Mr. Moffitt's post-trial deposition that compliance with request no. 6 prior to trial, as ordered, would have been equally uncomplicated: Q.... And I just want to ask, when was the first time that the general counsel's office became involved in this case in any respect with regard to discovery requests? A. After the verdict was in. Q. After the verdict that was rendered in the jury trial? A. That's correct. Q. Okay. And tell me what occurred at that time. A. Mr. Scott came up and told me that we needed to produce a list. Moffitt September 9 depo. at 12–13. Of course, the list was promptly produced. Within a week of Mr. Scott's request, Mr. Moffitt was able to compile the list by retrieving his own files and referring to his annual litigation summaries. Id. at 19–21. Significantly, Mr. Moffitt also confirmed that Mr. Scott was well aware that the law firm had a file for “each of the lawsuits.” Id. at 18. Only if a file was, for some reason, out of the office would Mr. Scott ever be unable to come to the general counsel's office and get a litigation file. Id. at 18. Thus, on July 22, defendant was ordered to comply with request no. 6, which it could do either by producing a list of lawsuits or by producing the complaints and petitions. Nothing was produced by August 6. Nothing other than a list of pending lawsuits was produced before the end of the trial. The list of pending lawsuits (as opposed to the pleadings themselves) was, of course, worthless by virtue of not having been produced until the first day of the trial, thus precluding meaningful investigation for evidentiary significance in this case (a result which the court cannot but conclude was the result intended by defendant). All the while, the complaints and petitions which National States had been ordered to produce reposed in the files of the law firm headed by the president of National States, the offices of which were located in National States' headquarters building. Those files were, by any measure, within the “possession, custody or control” of National States. Rule 34(a), F.R.Civ.P. There was no practical impediment of any kind to full and timely compliance with the July 22 order as to request no. 6. This was an instance of disobedience in its simplest form. *10 We now know that defendant had been sued 39 times in cases involving life insurance policies. Motion for sanctions, ex. 16. In his post-trial deposition, Mr. Moffitt acknowledged that most of the actions on life insurance policies involved rescissions, and every one of those cases probably included a claim of bad faith. Moffitt September 9 depo. at 52–53. During the punitive damage phase of the trial, defendant's counsel elicited the following testimony from Mr. Morrison: Q. Were you ever aware of any lawsuits or jury verdicts against—let me back up. Are you aware of any jury verdicts against National States with respect to their rescission practices? A. No, I'm not. MR. O'DONNELL: That's all I have, thank you. Tr. p. 552. Of course, in asking the question (and even in abortively referring to “lawsuits”), counsel was well aware that plaintiffs had been hobbled in their ability to counter the implication of Mr. Morrison's answer to the question. This question clearly opened the door not only to any adverse verdicts but to other potentially telling matters which might be gleaned from litigation files, including settlements of rescission cases under circumstances which might suggest, in the words of the Vining court, “a deliberate, willful pattern of abusive conduct by [National States] in handling claims under its life insurance policies.” Vining at 1214.[6] As plaintiffs aptly put it, National States “simply decided that it was worth whatever the court might do for non-compliance in order to avoid this evidence at trial, and only this court's order on plaintiffs' motion for sanctions will determine whether or not its decision was a good one.” Motion for sanctions, at 11. C. Other matters as to which sanctions are sought. In their motion for sanctions, plaintiffs assert additional matters which they argue should be sanctionable. Motion for sanctions, at 14–17. Plaintiffs assert that several potentially probative documents were not produced or were produced too late to be profitably used at trial, even though defendant had agreed to produce them. Id. Plaintiffs assert that, due to their reliance upon defendant's assurances of compliance, they were lulled into forgoing the filing of a motion to compel. On the basis of the matters which were brought out at trial (both in the hearing of the jury and without the jury present), the court finds that plaintiffs' assertions as to these other matters are well-founded. However, since the plaintiffs did not have the backing of an order of this court with respect to the additional discovery matters complained of, the court declines, at this stage of the litigation, to address those matters as being potentially sanctionable. Defendant's misconduct with respect to the rescission files and the information relating to other litigation provides a sufficient basis for fair resolution of the motion which is now at issue before the court. IV. Analysis Under Rule 37(b)(2) and the Inherent Power of the Court. A. Authority to impose sanctions. *11 The motion now before the court implicates the court's inherent power as well as its power under Rule 37(b), Fed.R.Civ.P. The latter source of authority will be considered first. Rule 37(b)(2). Under Rule 37(b)(2) if a party fails to obey an order compelling discovery, the court “may make such orders in regard to the failure as are just.” The rule provides a nonexclusive list of possibilities, including preclusion orders, the striking of claims or defenses, and contempt. Rule 37(b)(2) also requires the court to order the offending party or attorney (or both) to pay the reasonable expenses, including attorney's fees, resulting from the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. No particular state of mind or degree of culpability is a prerequisite to an award of sanctions, at least when the sanction imposed is not severe. Thus, a finding of willfulness or contumacious conduct is not necessary to support sanctions that are less severe than dismissal or entry of a default judgment. See, generally, 7 Moore's Federal Practice, § 37.50[2][b] (Matthew Bender 3d ed.). Extended discussion as to the required state of mind or degree of culpability is not necessary here, however. The court has no trouble finding, and does find, both as to defendant's failure to produce the rescission files and its failure to produce the information as to previous and pending litigation, that defendant's misconduct was willful. The court is convinced, from the totality of the circumstances presented by the written record and in open court before and during the trial of this action, that defendant's violations of the July 22 order were calculated, and were not negligent or simply a result of a casual or lackadaisical approach to compliance.[7] Defendant's intent was to undermine, to the maximum extent possible, the plaintiffs' ability to prove their case, both as to liability and as to the degree of defendant's culpability for punitive damages purposes.[8] Inherent power. In Chambers v. Nasco, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), the Supreme Court made it clear that the district court has the inherent power, independent of any statute or rule, to impose sanctions for serious litigation abuse. The court noted that the various statutes and rules which might be applied to remedy litigation abuse reach “only certain individuals or conduct,” while the inherent power “extends to a full range of litigation abuses.” Id. at 46. The inherent power does not have only interstitial application, however. The power can “be invoked even if procedural rules exist which sanction the same conduct.” Id. at 49. In the exercise of its inherent power, the court must be mindful that, as the Supreme Court cautioned in Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996), the inherent power doctrine is an exercise by the judicial branch in the definition of its own authority. Id. at 823. Accordingly, the Court cautioned that a power such as this, the contours of which are defined without the benefit of the usual checks and balances, must be “delimited with care” and used with restraint. Id. The court's inherent power encompasses the power to sanction either party misconduct or attorney misconduct, and includes the power to enter a default judgment or a lesser sanction. Chambers at 43–45. See also, Millsap v. McDonnell Douglas Corp., 162 F.Supp. 1262 at 1308 (N. D.Okla.2001). *12 The Court of Appeals has recognized the district court's “inherent power to impose a variety of sanctions to regulate its docket, promote judicial efficiency and deter frivolous filings.” Resolution Trust Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir.1995). See also, to the same effect, Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1419 (10th Cir.1997). B. Standard for Determining Whether to Impose Sanctions. Closely related to the question of the court's authority, as a general proposition, to impose sanctions, is the question of the standard which governs the court's decision whether to impose sanctions in any particular instance. Under Rule 37(b), a litigant which has clearly violated a discovery order is, on that basis alone, exposed to the imposition of sanctions. Creative Gifts, Inc. v. UFO, 235 F.3d 540, 549 (10th Cir.2000); Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.1992). At least where the extreme sanctions of default or dismissal are not imposed, a showing of willfulness or bad faith need not be made. See, generally, 7 Moore's Federal Practice, § 37.50 [1] (Matthew Bender 3d ed.). If a violation of the order is shown, it makes no difference that the information in question was ultimately produced. State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th Cir.1978) The matter now at bar differs somewhat from the typical sanctions situation in that the trial has been held. Compliance with the order compelling discovery was delayed to the extent that it did the plaintiffs little or no good (little good as to the rescission information and no good as to the litigation information), and the matter of sanctions is being considered post-trial. To the extent that we are dealing here with the withholding of evidence until after it could effectively be used at trial, this case strongly resembles a case of spoliation. Sanctions for spoliation are appropriate when a party destroys discoverable material which the party knew or should have known was relevant to pending, imminent, or reasonably foreseeable litigation. Gates Rubber Co. v. Bando Chemical Industries, Ltd., 167 F.R.D. 90, 101 (D.Colo.1996) (citing Gorelick, et al., Destruction of Evidence, § 3.8 (Wiley 1989)). The court, in Gates, applied the factors endorsed in Ehrenhaus (in a dismissal context) to determine whether sanctions should actually be imposed. Id. The Ehrenhaus factors are: (1) The degree of actual prejudice to the complaining party, (2) the amount of interference with the judicial process, (3) the culpability of the offending party, (4) whether the court warned the party in advance that dismissal would be a likely sanction (not relevant here), and (5) the efficacy of lesser sanctions. Ehrenhaus at 921. It is clear from Ehrenhaus that the five-factor test which the court articulated is applicable only where an extreme sanction—typically a dispositive sanction—is at issue. Where, as in the case at bar, a dispositive sanction is not at issue, but most of the evidence in question was wrongfully withheld until after it could effectively be used, the first three Ehrenhaus factors are the relevant ones. *13 Focusing on those three factors, the most difficult factor is the first, viz., the degree of actual prejudice. As is discussed below, the court is not in a position to determine at this point, with an adequate confidence level, the degree of actual prejudice to the plaintiffs which resulted from the defendant's violations of the July 22 order. The second and third Ehrenhaus factors need not detain the court long. The interference with the judicial process which resulted from the defendant's violations was significant. The defendant's actions had the effect, which the court finds was a calculated effect, of requiring the court to choose between trying the case in a timely fashion but without evidence the defendant had been ordered to produce, on one hand, or postponing the trial to accommodate the defendant's inexcusable delay, on the other hand. Either way, the defendant's actions made substantial disruption of the judicial process a fait accompli in this case. The third Ehrenhaus factor, the culpability of the offending party, has been discussed. The defendant's violations were willful and they were calculated to have prejudicial effect. C. Procedure for Consideration of Sanctions. Where the sanctions to be considered are essentially compensatory, the allegedly offending party must receive notice that sanctions are being considered and must be accorded an opportunity to respond. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir.1995). The opportunity to be heard need not consist of an oral or evidentiary hearing. The opportunity to fully brief the issue is sufficient. Id. See also, White v. General Motors Corp., 908 F.2d 675, 686 (10th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). In the case at bar, no further process is due on the issue of the defendant's violations or the willfulness of those violations. As is discussed below, further proceedings will be necessary in order to determine the sanction to be imposed. D. Determination of the Sanction to be Imposed. Determination of the appropriate sanction is “a fact-specific inquiry.” Ehrenhaus at 920. At least where the sanction is discovery-related, the sanction must be both “just” and related to the particular claim which was at issue. Id. The Ehrenhaus factors, especially the first three (see pp. 23—24, above), are as informative in determining what the sanction should be as they are in determining whether sanctions should be imposed at all. Cf. United States v. Koch Industries, Inc., 197 F.R.D. 463, 483 (N.D.Okla.1998). The imposition of sanctions has a punitive element, Law v. National Collegiate Athletic Assoc., 134 F.3d 1438, 1443 (10th Cir.1998). Indeed, serious sanctions are warranted in cases, such as this one, where the judge finds willfulness or bad faith. Gates, at 103. Nevertheless, the sanction imposed should still ordinarily be tailored with an eye to remedying the harm resulting from the offender's conduct. As Judge Joyner aptly put it in addressing spoliation of evidence in Koch, “[t]he severity of the sanction selected should be a function of and correspond to the willfulness of the spoliator's destructive act and the prejudice suffered by” the opposing party. Koch at 483. *14 The court is unable to confidently determine, on the basis of the record now before it, the extent of the harm which resulted from defendant's misconduct. The harm, if any there was, consisted of the impairment of the plaintiffs' ability to marshal the strongest case possible within the confines of the time and resources available. The jury did find, by clear and convincing evidence, that National States Insurance Company recklessly disregarded its duty to act in good faith and deal fairly with the plaintiffs. The jury also found that defendant intentionally and with malice breached its duty of good faith. Those jury findings were as favorable to the plaintiffs as was permitted by the instructions and verdict forms. The jury awarded $150,000 in punitive damages. Plaintiffs' ability to establish liability for compensatory and punitive damages was not impaired. However, in fixing the amount of the plaintiffs' recovery of punitive damages, the jury stopped well short of the $500,000 cap imposed by the instructions. The evidence defendant withheld would have been relevant, and perhaps most powerful, with respect to the jury's determination of the amount of punitive damages to award. It may be that if the defendant had complied with the July 22 order by August 6, as required, the plaintiffs would have been able to assemble and present a case with much more sting on the subject of punitive damages. A number of matters which might have been disclosed if defendant had timely complied with the July 22 order were, as a matter of statutory law and under the instructions to the jury in this case, directly relevant to the determination of the amount of punitive damages to be recovered. See,23 O.S.2001 § 9.1. A cogent, focused presentation based on defendant's rescission and litigation history might have been very potent—a possibility which suggests itself as one of the more rational, though indefensible, reasons for defendant's misconduct. It is also possible that the defendant's violations of the July 22 order had no significant effect on the outcome of the trial. The court declines to speculate as to whether defendant's violations prevented plaintiffs from putting on a more compelling case in support of their punitive damages claim. Further proceedings are necessary. The court will afford plaintiffs an opportunity to present any evidence which would tend to support their claim that they were harmed by defendant's violations. Defendant will be afforded a like opportunity to rebut plaintiffs' contentions. As to information relating to past and present litigation, defendant should have produced, not later than August 6, 2003, a list of all lawsuits against it during the preceding five years, or copies of all complaints and petitions filed against defendant during the preceding five years. Plaintiffs' counsel would then have had from August 6 to August 18 (if not a day or two later, depending on trial strategy) to retrieve additional documents and marshal their presentation. If defendant had complied with the July 22 order as it should have, counsel for plaintiff would also have had a much more workable opportunity to analyze the information disclosed by the rescission files and prepare for effective presentation and use of that information at trial. By this order, the court will put plaintiffs in a position to demonstrate the probable effects of defendant's violations of the July 22 order. *15 It is accordingly ORDERED as follows: 1. Defendant is directed to produce to plaintiffs' counsel, at their offices in Oklahoma City, not later than February 13, 2004, complete copies of all litigation documents in the defendant's possession, custody or control, relating to litigation listed in exhibit 16 to the motion for sanctions. For purposes of this paragraph, “litigation documents” means copies of documents filed in a public record (typically a court file). The defendant's “possession, custody or control” includes documents in the possession of any law firm or other entity retained by defendant which had any responsibility with respect to any such litigation. (Defendant is not required by this order to produce copies of documents which are not in its possession, custody or control within the meaning of this paragraph. Thus, defendant is not required by this order to obtain from the public record copies of documents not otherwise accessible to defendant as set forth above.) 2. This case is set for a status and scheduling conference at 2:00 p.m. on February 20, 2004, for the purpose of (i) discussing and determining the nature and extent of any additional discovery necessary to enable the parties to support their contentions as to the probable effect of defendant's noncompliance with the July 22, 2003 order and (ii) setting an evidentiary hearing. 3. All expenses incurred by defendant in complying with this order shall be borne by defendant. Footnotes [1] “Tr.” references are, by page, to the trial transcript which was filed on December 2, 2003. [2] Mr. Morrison was deposed on August 14 with respect to defendant's compliance with the July 22 order, and again on September 9, 2003, in connection with plaintiffs' motion for sanctions. Michael Scott was deposed on August 14 only. Terrance Moffitt was deposed on both August 14 and September 9. [3] As can be seen, defendant's assertion, response at 10, that “[t]hese files were, indeed, produced on August 11, 2003—five days late” is squarely contradicted by the record. [4] This deposition took place by telephone, with plaintiffs' counsel in Oklahoma City and Mr. Morrison in St. Louis. See exhibit D to defendant's response to the motion for sanctions, at p. 5. [5] In fact, defendant's general counsel had no trouble retrieving the lists he had prepared for that purpose. Defendant's response, at 5—6. [6] Defendant asserted in its response that plaintiffs could have, but did not, “ask the witness whether National had ever been sued, or settled claims.” Response, at 6 (n. 6). This is a prime example of the chutzpah with which defendant has conducted itself in this case. As defendant and its counsel were well aware when they broached the subject on direct examination, their failure to comply with the July 22 order left the cross examiner unable to respond in any effective way to any suggestion that National States had not previously been called to account for the practices which were at issue in the trial of this case. [7] In any event, even a simple failure to “focus on the problem of delay” would not excuse disobedience of the court's order. State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th Cir.1978) (internal quotation marks omitted). [8] In referring to defendant's culpability, and, for that matter, with respect to all facets of this order, the court is mindful that it must not conflate defendant's culpability on the merits (a matter exclusively for the jury, which has been resolved adversely to the defendant) with defendant's culpability for its disregard of its discovery obligations. The court's findings in this order are neither predicated upon, nor influenced by, the merits of plaintiffs' claims. As to the separateness of sanctions versus the merits, see Law v. National Collegiate Athletic Assoc., 134 F.3d 1438, 1441, n. 7 (10th Cir.1998).