The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
This matter comes before the Court after remand by the Court of Appeals "for further consideration of less onerous sanctions" for the defendant District of Columbia's and its counsel's misconduct during this litigation. Upon consideration of the Court of Appeals' decision, defendant's Motion To Govern Further Proceedings on Liability, plaintiff's opposition, defendant's reply, and the record in this case, the Court will reinstate its prior entry of default in this matter and order further proceedings on the issue of appropriate remedy.
This is a Title VII action. Plaintiff alleges that he was discriminated against on the basis of race and sex with regard to several positions to which he applied within the D.C. Department of Corrections (DOC); he also alleges that he was terminated in retaliation for complaining about the discrimination that he suffered. The details of plaintiff's allegations and the procedural history of this case have been set forth previously by this Court, see Webb v. District of Columbia, 864 F. Supp. 175 (D.D.C. 1994); Webb v. District of Columbia, 175 F.R.D. 128 (D.D.C. 1997), vacated by Webb v. District of Columbia, 146 F.3d 964 (D.C. Cir. 1998), and by the Court of Appeals, see Webb, 146 F.3d at 967-70. The principal facts relevant to today's decision can be summarized as follows: *fn1
After several years of litigation in which plaintiff appeared pro se and filed a number of amended complaints, this Court denied in part and granted in part defendant's motion to dismiss the case or, in the alternative, for summary judgment. See Webb, 864 F. Supp. at 179. Counsel was subsequently appointed to assist plaintiff in his prosecution of the case, and the parties proceeded to a second and final round of discovery. On November 18, 1996, this Court issued an order stating that discovery would close on January 24, 1997 and that trial would commence March 24, 1997. On several subsequent occasions, the Court expressed to the parties in no uncertain terms that the trial date was firm and would not be continued.
On December 3, 1996, defendant responded to plaintiff's first request for production of documents (which was served on defendant October 30, 1996). Rather than give complete responses, the District indicated in eleven instances that "it had forwarded the request to the appropriate agency for documents responsive to [the] request." At a status conference held December 6, 1996, defense counsel conceded that such responses were not sufficient under the Federal Rules of Civil Procedure, and the Court ordered the parties to meet and confer in an attempt to resolve that and other issues relating to inadequacies in the defendant's responses. Based on the insufficient responses and other discovery problems that had already arisen, the Court's December 6, 1996 order also extended the discovery deadline one month, to February 24, 1997, in order to accommodate the District and avoid prejudice to the plaintiff. On December 18, 1996, the parties agreed that the defendant would supplement its responses to the request for production of documents. However, throughout December and into January, no supplemental response was forthcoming from the District.
In early January, just weeks before the close of discovery, the defendant's supplemental responses began to trickle in to plaintiff. On January 13, 1997, defendant responded to plaintiff's second set of interrogatories. In addition, several District employees were subpoenaed to produce documents at their depositions; at least some of the documents produced at the depositions were responsive to the plaintiff's earlier discovery requests but as yet unproduced.
On or about January 16, 1997, two and one half months after the plaintiff's first document request, defense counsel alerted plaintiff's counsel for the first time that some relevant documents relating to the case, including portions of plaintiff's personnel file, may have been destroyed. Upon plaintiff's request, the District submitted a declaration from D.C. personnel management specialist Karen Adams on February 4, 1997 stating that all "temporary records" had been removed from plaintiff's personnel file and destroyed in preparation for storage at the federal records center. The District also submitted a declaration from D.C. Office of Personnel Supervisory Personnel Management Specialist Joan Murphy stating that, in accordance with District policy, all merit case files *fn2 would have been destroyed two years after filling the relevant vacancy. Ms. Murphy stated that she had informed defense counsel of the destruction of the merit case files "immediately" upon receipt of the request for documents relating to three positions at issue in this case. No explanation was given, however, then or subsequently, for defense counsel's failure to inform the plaintiff and the Court of this destruction before late January-early February of 1997.
On January 27, 1997, plaintiff moved to compel full and complete responses to their discovery requests and for sanctions. The Court granted the motion on March 1, 1997, ordering the District to provide full and complete responses to plaintiff's discovery requests no later than March 6, 1997, and to provide the Court with written confirmation of compliance. The Court also granted plaintiff's motion for sanctions, stating that the appropriate sanction would be determined at a later stage. Finally, the Court granted plaintiff's motion to take depositions of District representatives pursuant to Federal Rule of Civil Procedure 30(b)(6).
On February 4, 1997, while the motion to compel was still pending, the District proffered Joan Murphy to testify as a Rule 30(b)(6) deponent on issues relating to vacancy announcements 89-125 and 90-167, including the qualifications of the ultimate selectees. Despite her 30(b)(6) status, Ms. Murphy was unable to testify to the procedures for selecting among the candidates listed on the selection certificate prepared by the Office or Personnel. She could not authenticate relevant documents, nor give other substantive testimony beyond that contained on the face of the documents. At the deposition, defense counsel acknowledged that Ms. Murphy was not the proper 30(b)(6) witness to testify to many of the items included on plaintiff's notice of deposition, but maintained that the District knew of no other witness who could adequately testify and that it would proffer such witness if he or she came to its attention. There is some dispute over whether defense counsel's representations were accurate, but in any event no adequate witness was proffered until after the close of discovery and just two weeks before the commencement of trial.
On March 6, 1997, the defendant provided supplemental responses to plaintiff's discovery requests as ordered by the Court. However, the District failed to provide the Court with written confirmation as required by the March 1, 1997 order. Equally frustrating, the defendant improperly objected to the requests in several regards, despite the Court's prior granting of the motion to compel. Moreover, although defendant was by this time aware of the destruction of numerous documents relating to plaintiff and his claims, no mention of such destruction was made in the District's responses to plaintiff's discovery requests.
The March 6, 1997 supplemental responses did bring to light a number of matters, however. For instance, the defendant identified Earthel Foster for the first time as someone involved in the selection process for one of the positions at issue. *fn3 The District also disclosed new details regarding the 89-125 position, including that interviews had been conducted, even though the previous responses had suggested that no interviews were conducted.
On March 13, 1997, eleven days before trial was scheduled to begin, plaintiff took the deposition of Karen Adams pursuant to Rule 30(b)(6). Plaintiff's 30(b)(6) notice of deposition requested, in relevant part, a witness to testify to the District's retention or destruction of personnel records relating to plaintiff's employment at the DOC. *fn4 Ms. Adams could not testify to when the District began to look for plaintiff's personnel file nor to who conducted the search. However, she did testify that a personnel file had been located, but that it had been processed for removal to the federal records center. Referring to her February 3, 1997 declaration, Ms. Adams testified that the personnel file contained no "temporary records," which apparently had been removed as part of the processing for storage. Although Ms. Adams could not testify to plaintiff's personnel file specifically, she stated that temporary records typically included requests for personnel actions, evaluations, position descriptions and data sheets, official letters of reprimand, and other documents potentially relevant to a discrimination claim. When questioned about District policies for retention of documents, Ms. Adams was unaware of the federal regulations governing retention of documents pertaining to discrimination claims, including 29 C.F.R. § 1602.31.
Finally, at a status conference held March 19, 1997, five days before the start of trial, defense counsel admitted in open court for the first time that portions of plaintiff's personnel file, as well as the entire merit case files, had been destroyed. On March 20, 1997, the Court announced that it would enter a default judgment against the District for its discovery abuses and destruction of critical documents. The defendant moved for reconsideration, which was denied August 4, 1997.
Accompanying the August 4, 1997 decision was a memorandum opinion setting forth the Court's reasons for imposing a default judgment against the District (rather than less severe sanctions) as required by the Court of Appeals case law on court-imposed sanctions for misconduct by parties and their counsel. See Webb, 175 F.R.D. at 145-48. Nevertheless, the Court of Appeals vacated the decision and remanded for that "further consideration of less onerous sanctions." *fn5 See Webb, 146 F.3d at 976. It is that consideration which the Court undertakes today.
The Court of Appeals held that this Court did not adequately consider sanctions less severe than default, or at least that the Court failed to adequately explain its reasoning in concluding that a default judgment was an appropriate sanction for the District of Columbia's misconduct in this case. See Webb, 146 F.3d at 11, 20, 20 n.23. Although the Court cannot hide its frustration at being required to provide yet another explanation of its decision, which was explained at length in August of 1997, the Court will undertake to better articulate why a default judgment is the only appropriate sanction in this case. To the extent that the August 1997 memorandum opinion failed to set forth every minute detail of the Court's reasoning, the Court can only remind itself that what is painfully evident to the trial court does not always shine forth with the same clarity from the appellate record.
A. Source of Court's Authority
Before embarking on its analysis, the Court will clarify one point apparently misunderstood by the Court of Appeals. The Court's power to sanction misconduct in this case clearly emanates both from the Federal Rules of Civil Procedure and from the Court's inherent powers. The Court of Appeals incorrectly stated that the Court's power under the Federal Rules of Civil Procedure in this case was limited to redressing the District's failure to comply with a court order explicitly requiring that the defendant provide the Court with written confirmation of its compliance with a time-sensitive discovery order. See Webb, 146 F.3d at 12 n.16. While the Court does not consider this failure to be insignificant, the Court notes that it was just one of a number of violations of discovery orders by the Court. For example, although the court-ordered supplemental responses were timely served on plaintiff, they included improper objections, despite the Court's order, and were still inadequate. Several responsive documents subject to the Court's order were also provided separately and untimely in connection with depositions of involved individuals. The District also failed miserably in its duties under Rule 30(b)(6) to proffer witnesses capable of testifying to "matters known or reasonably available to the organization," as the District itself conceded. This conduct is likely sanctionable under Rule 37(d) even absent a court order, but the Court notes that the deposition of Ms. Adams was authorized by the Court's March 1, 1997 order, making Rule 37(b)(2) applicable. Thus, contrary to the Court of Appeals' suggestion, this Court's power to sanction the District's misconduct is based in the rules of civil procedure as well as in the Court's inherent powers.
B. Standard for Imposing Default as a Discovery Sanction
In any event, as the Court of Appeals noted, the appropriate standard under either the rules of civil procedure or the Court's inherent powers is essentially the same. Before focusing on the Shea standard applied by the Court of Appeals in this case, the Court feels duty-bound to review a number of other relevant precedents addressing the appropriateness of default judgments as sanctions for discovery misconduct.
1. Deference to the Trial Court
The district court's power to sanction discovery abuses with an entry of default was recognized by the United States Supreme Court in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976). In that case, the Court upheld the district court's default judgment under Rule 37 for the respondent's failure to respond timely or adequately to interrogatories. Addressing the appropriate deference to the district court's determination, the Court wrote:
There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. ... But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Id. at 642-43.
This deferential standard was adopted by the Court of Appeals for this Circuit. Judge Starr described the appropriate review in Founding Church of Scientology of Washington, D.C. v. ...