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Zenian v. District of Columbia

September 22, 2003

VARTAN P. ZENIAN, PLAINTIFF,
v.
DISTRICT OF COLUMBIA, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

In this opinion, I resolve Plaintiff's Motion for Entry of Default Judgment or in the Alternative to Preclude Defendant's Raising of Certain Issues at Trial, Defendant District of Columbia's Motion in Limine, Plaintiff's Motion in Limine, and Plaintiff's Application for Attorney's Fees.

INTRODUCTION

Plaintiff, a white male of Lebanese descent, claims that in the period from July 1995 through July 1997 his supervisor, Veda Shamsid-Deen, discriminated against him because of his race. One of his specific claims is that in April 1997, an African-American woman, Alison Nixon, was promoted instead of him. Joint Pre-Trial Statement at 3.

The Motion for Entry of Default Judgment

On February 28, 2002, Judge Sullivan, to whom this matter was then assigned, ordered the defendant District of Columbia ("the District") to produce what the judge called "the personnel files of four individuals."

On December 6, 2002, plaintiff moved for either default judgment or in the alternative to preclude the District from"arguing at trial or introducing evidence that Mr. Zenian's co-workers, Alison Nixon and Maurice Goff, were more qualified than Mr. Zenian." Plaintiff's Motion for Entry of Default Judgment or in the Alternative to Preclude Defendant's Raising of Certain Issues at Trial at 1. Plaintiff insisted that there was not one performance evaluation for Nixon or Goff in the personnel files that the District produced.

One week later, the District filed its opposition to this motion, noting in a footnote that it had produced performance evaluations for Nixon and Goff. Defendant's Opposition to Plaintiff's Motion for Entry of Default Judgment or in the Alternative to Preclude Defendant's Raising of Certain Issues at Trial at 1 n.1. The District provided no explanation whatsoever as to why these documents were not produced to plaintiff's initial discovery requests or in response to Judge Sullivan's order of February 28, 2002.

In reply, plaintiff pointed out that the District had originally stated that it did not have all of the requested documents but, once plaintiff moved for default judgment, some of the missing documents"magically" appeared. Plaintiff's Reply in Support of Motion for Entry of Default Judgment or in the Alternative to Preclude Defendant's Raising of Certain Issues at Trial at 1. Even so, 1997 performance evaluations for Alison Nixon and Maurice Goff are still missing. Id.

As I have recently pointed out:

[I]ndependent of the sanctions specifically authorized by the Federal Rules of Civil Procedure, the Court has inherent authority to prevent misconduct under the discovery rules. Authority in this jurisdiction indicates that dismissal for such misconduct is appropriate when there has been a significant disruption or delay in the judicial system, there has been prejudice to the opposing party, the misconduct is disrespectful of the court, and there is a need to deter such behavior in the future. Memorandum Opinion of October 28, 2002 (citing Webb. District of Columbia, 146 F.3d 970, 971 (D.C. Cir. 1998)).

Lebron v. Powell, 217 F.R.D. 72 (D.D.C. Sept. 5, 2003).

As I have also pointed out, the sanction ordered must be finely calibrated to the wrong done:

"[S]anctions based only on principles of deterrence'call for careful evaluation to ensure that the proper individuals are being sanctioned (or deterred) and that the sanctions or deterrent measures are not overly harsh.'" Bonds v. District of Columbia, 93 F.3d 801, 807-808 (D.C. Cir. 1996) (quoting Shea v. Donohoe Construction Co., 795 F.2d 1071, 1077 (D.C. Cir. 1986). Accordingly,"a discovery sanction imposed for its deterrent effect must be calibrated to the gravity of the misconduct." Bonds, 93 F.3d at 808. The central consideration in imposing any discovery sanction is the proportion between the offense and the sanction. To be just, therefore, the sanction must never be any more severe than it need be to correct the harm done and to cure the ...


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