In BCBSM, Inc. v. Walgreen Co., No. 20 C 1853, No. 20 C 1929, No. 20 C 3332, No. 20 C 4940, No. 20 C 4738 (N.D. Ill. Sept. 29, 2025), Illinois District Judge Virginia M. Kendall granted in part Walgreens’ Motion for Sanctions, awarding attorney’s fees and costs under Rule 37(a)(5)(A) (while declining to order sanctions on the other grounds raised by Walgreens), due to deficient productions by the Initial Plaintiffs caused by a flawed approach to technology assisted review (TAR).

Case Discussion and Judge’s Ruling

At the heart of the dispute was the Initial Plaintiffs’ use of a TAR/CAL (Continuous Active Learning) process to identify responsive documents. In August 2022, after producing fewer than 18,000 documents, Plaintiffs represented to the Court and Walgreens that their productions were “substantially complete.” Walgreens challenged the adequacy of those productions, pointing to a prior, closely related litigation against CVS in which a subset of the same Plaintiffs had produced approximately 140,000 responsive documents. When Walgreens later identified responsive documents from the CVS matter that had not been produced here, Plaintiffs conceded that those documents had been scored below their 64-point responsiveness threshold in their TAR system.

Between August 2022 and March 2023, Initial Plaintiffs produced over 280,000 additional documents and claimed again that they officially declared substantial completion of document production. The dispute escalated into motions to compel (with Initial Plaintiffs ordered to pay Walgreens’ attorney’s fees and expenses) and ultimately the appointment of Special Master Maura R. Grossman.

After conducting a Preliminary Diagnostic Protocol, Special Master Grossman warned that Plaintiffs’ results raised “serious questions about the adequacy of [their] productions” and highlighted a “huge discrepancy” between the number of responsive documents Plaintiffs expected to find and the number they actually produced. She also questioned “how [Plaintiffs] could possibly have declared their original production substantially complete under these circumstances.”

Those concerns ultimately led to a court-approved remediation protocol under which Walgreens reviewed document samples, coded them for responsiveness using Plaintiffs’ own definitions, and retrained Plaintiffs’ TAR model accordingly. By the end of the remediation, Walgreens had identified more than 77,000 additional responsive documents – most from custodians whose data Plaintiffs already possessed when they made their substantial-completion declarations.

Judge Kendall emphasized that Rule 37(a)(5)(A) is presumptively mandatory when a motion to compel is granted, noting that it “presumptively requires every loser to make good the victor’s costs.” She added: “Initial Plaintiffs never addressed Rule 37(a)(5)(A) in their 35-page response brief…And nowhere in their brief did they argue that their actions were substantially justified or that an award of attorney’s fees under Rule 37(a)(5)(A) would be unjust. So, they have forfeited their objections to sanctions under this Rule.”

Even so, Judge Kendall independently concluded that no justification existed, stating: “Initial Plaintiffs produced less than 10% of the responsive documents they expected to find in their initial production; inexplicably narrowed their coding criteria for responsiveness during the review; made simple math errors; and failed to manually review over 500,000 documents they excluded from the TAR process…The Court agrees with the Special Master that these issues raised ‘serious questions about the adequacy of [Initial Plaintiffs’] productions.’…The Special Master ultimately concluded that a substantial number of additional responsive documents likely had still not been produced…Untimely disclosures and discovery responses are generally not substantially justified…The Special Master’s finding that Initial Plaintiffs failed to produce responsive documents three years into litigation shows that Initial Plaintiffs were not substantially justified under Rule 37(a)(5)(A)(ii).”

Continuing, Judge Kendall stated: “If Initial Plaintiffs did not have to bear the costs created by their own deficient productions, there would be little reason for them not to repeat their behavior in the future. This is especially true here, where the Court has granted two motions to compel against Initial Plaintiffs…Initial Plaintiffs have no excuse for their repeated discovery malfeasance, and justice requires an award to make Walgreens whole…The Court finds that Initial Plaintiffs have not met their burden of proving they fit into one of Rule 37(a)(5)(A)’s exceptions and thus, applies the presumptive fee-shifting in favor of Walgreens. Walgreens’ request for an award of their expenses and attorney’s fees associated with bringing their motion to compel is granted.”

That was the extent to which sanctions were granted, as Judge Kendall stated: “The additional sanctions Walgreens seeks—dismissal, preclusion of Initial Plaintiffs’ obtaining damages and costs, and adverse jury instructions—are either not warranted or not available under the law.”

Judge Kendall also denied Initial Plaintiff’s Motion for sanctions where they alleged that Walgreens “manipulat[ed] the special master process to its benefit” so that it could “control the outcome of the Remediation Process without any guardrails, verification process, or checks and balances”, by stating: “Initial Plaintiffs spend a bulk of their 35-page Motion reciting grievances about the terms of the Remediation Protocol which they participated in drafting… The Court cannot, and will not, issue sanctions just because Initial Plaintiffs do not like the outcome of a remediation process that was only necessitated by their own discovery failures. Initial Plaintiffs cannot avoid the consequences of their discovery failures; the delays and costs associated with this process fall squarely on Initial Plaintiffs.” So, she denied their request for sanctions.

So, what do you think? Are you surprised that the deficient productions by the Initial Plaintiffs didn’t lead to further sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today.

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