United States District Court for the District of Columbia
May 4, 2005.
ROY BANKS, Plaintiff,
OFFICE OF THE SENATE SERGEANT-AT-ARMS and DOORKEEPER, Defendant.
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
This case has been referred to me for full case management.
Currently pending and ready for resolution is plaintiff's Motion
for Discovery and Sanctions Pursuant to the Court's February 16,
2005 Order. For the reasons stated herein, the motion is granted
in part and denied in part.
On May 22, 2003, the Assistant Senate Sergeant at
Arms,*fn1 Rick Edwards ("Edwards"), fired Roy Banks ("Banks"
or "plaintiff") because he believed that Banks told the Director
of Human Resources, Doug Fertig ("Fertig"), that if a certain
employee ("S.R.")*fn2 "wants to have people who will be
subservient, he better go back to restaurants and manage
Hispanics." Defendant's Opposition to Plaintiff's Motion and
Memorandum in Support for Discovery and Sanctions ("Def.'s
Opp."), Ex. 4. In a memorandum to Banks, Edwards indicated that
Banks' comment "was racist and reflects an improper bias that will not
be tolerated, especially in a manager." Id. Banks has
challenged his termination as being improperly based on his race,
age, alleged disability, sex, or in retaliation for various
complaints or claims he has made. See Banks v. Office of the
Senate Sergeant at Arms, 222 F.R.D. 7, 9 (D.D.C. 2004).
Discovery in this matter has been long, protracted, and
litigious. Currently pending before me is the issue of whether
the court should award sanctions to plaintiff because defendant
produced, after the close of discovery, a group of documents
pertaining to an SAA investigation of whether Capitol Facilities
managers favor Hispanics or whether there were any rumors that
Capitol Facilities managers discriminated in that manner.
Plaintiff seeks severe sanctions, including entry of default
judgment, because he claims that the late production of these
documents ("Investigatory Notes" or "Notes") has "changed
everything about this case." Plaintiff's Motion and Memorandum
in Support of Motion for Discovery and Sanctions Pursuant to the
Court's February 16, 2005 Order ("Pl.'s Mot.") at 1-2. Defendant
concedes that the documents were late but insists that they were
only responsive to plaintiff's Third Request for Production of
Documents. Thus, according to defendant, the notes were only one
month late, and any harm plaintiff suffered can be easily
remedied by asking questions about the investigation during the
30(b)(6) deposition, which was the only outstanding discovery
matter at the time the documents were produced and which still
has not been completed.
A. Legal Standard
Under Federal Rule of Civil Procedure ("Rule") 37, a court may
sanction a party that fails to comply with a discovery order.
Fed.R.Civ.P. 37(b)(2). The Federal Rules authorize a wide array of sanctions, including the award of reasonable attorney's
fees and expenses, caused by the failure to obey a court order
"unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses
unjust." Id. Similarly, under Rule 37(c)(1), the court may
impose sanctions on a party that, without substantial
justification, fails to disclose information required by Rule
26(a) or 26(e)(1). Fed.R.Civ.P. 37(c)(1). As I have recently
noted, "[a] party's actions are substantially justified if the
issue presented is one that `could engender a responsible
difference of opinion among conscientious, diligent[,] but
reasonable advocates.'" Peterson v. Hantman, 227 F.R.D. 13, 16
(D.D.C. 2005) (quoting Athridge v. Aetna Cas. & Sur. Co.,
184 F.R.D. 200, 205 (D.D.C. 1998) (citations omitted)).
District courts are entrusted with broad discretion regarding
whether to impose sanctions and the nature of the sanctions to be
imposed. Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C.
Cir. 1996); Steffan v. Cheney, 920 F.2d 74, 75 (D.C. Cir.
1990). However, the court's discretion is not without limits, and
this Circuit has emphasized that any sanction awarded must be
proportional to the wrongs done. Bonds, 93 F.3d at 808 ("The
central requirement of Rule 37 is that `any sanction must be
`just,' which requires in cases involving severe sanctions that
the district court consider whether lesser sanctions would be
more appropriate for the particular violation. The choice of
sanction should be guided by the `concept of proportionality'
between offense and sanction.") (internal citations omitted).
1. Whether the Investigatory Notes and Supporting Documents
Were Responsive to Plaintiff's Discovery Requests
a. First Interrogatory Number 8 and First Document Request
Number 10 On November 18, 2003, Banks propounded First Interrogatory
Number 8, demanding that SSA describe any investigation into
whether S.R. made any statement comparing African-American
workers with Hispanic workers. Pl.'s Mot. at 14. The
interrogatory sought the identification of all documents that
were "part of the investigation or viewed by any investigator."
Id. The accompanying request for production of documents, First
Document Request Number 10, sought the production of the
documents that were identified. Id. In his motion, Banks
focuses his argument almost entirely on these discovery requests.
Brenda J. Pence ("Pence") was the SAA attorney responsible for
answering the interrogatories. She objected to Interrogatory
Number 8 as vague and ambiguous but also responded that no
responsive documents existed.
In June 2003, Jean McComish ("McComish"), Senior Human
Resources Administrator for SAA, interviewed four employees as
part of her investigation into: (1) whether they heard
allegations that Capitol Facilities management favors Hispanics
because "they are more subservient/easier to push around;" and
(2) whether they had heard any Capitol Facilities supervisor or
manager say that he or she favors hiring Hispanics because they
are "more subservient/easier to push around." Pl.'s Mot., Ex. A.
A woman named K.C. told McComish that she had never heard a
manager or supervisor say that Hispanics are easier to push
around or that he or she preferred to hire Hispanics. According
to McComish's notes, K.C. then said:
About three or four months ago, [M.K.] and I were
conversing after a night Facilities Worker was hired.
[M.K.] told me that she favored a candidate who was a
black male whereas [S.R.] had favored hiring a
Hispanic male. [M.K.] told me `I don't understand.
This other fellow is more qualified. I don't know whether he [S.R.] prefers to hire Hispanics because
they are more subservient/he thinks that they are
more subservient.' The conversation never went any
further than that. [M.K.] was venting. She was
speaking out of her frustration; it was not an
accusatory statement. I did not take offense at what
[M.K.] relayed and my husband is part Hispanic.
If you are asking me do I believe that [certain
managers] and I are racists, then I would say `no.'
Do we have some team building issues in Capitol
Facilities. Yes, but no one favors Hispanics over
Pl.'s Mot., Ex. A, at 3.
Pence explains that, because Interrogatory Number 8 asked for
documents pertaining to whether S.R. had made certain statements,
and McComish's investigation was for a different purpose,
"namely, to investigate whether an employee other than [S.R.] had
made certain allegedly improper statements," she did not think
that information about McComish's investigation was responsive to
Interrogatory Number 8. Def.'s Opp., Ex. 7, ¶ 4. In addition,
Pence objected to this interrogatory because, when read with the
first seven, it exceeded the numerical limits on
interrogatories.*fn3 Although she objected, Pence also
drafted a substantive response to Interrogatory Number 8 that
stated: "Defendant never received any report that [S.R.] had
compared African-American workers with Hispanic workers, and
therefore, an investigation was never conducted regarding that
allegation." Id., ¶ 6.
A few months later, after plaintiff propounded his third
document requests and defendant answered them, Pence was
reviewing the draft privilege log and discovered that McComish's
notes of her June 2003 investigation had been designated as
privileged and therefore not given to Banks' counsel. Pence determined that the notes she had*fn4
of McComish's investigation were not privileged and turned them
For her part, McComish explained that the purpose of her June
2003 investigation was to determine whether a Capitol Facilities
Night Manager, to whom I shall refer as M.K., had made
inappropriate statements. Def.'s Opp., Ex. 3. She interviewed the
employees named above, prepared a typed summary of "the salient
facts," and forwarded it to counsel for the Sergeant of Arms to
keep counsel informed of "personnel matters, which is my custom."
Id. This must have been the report that Pence saw and that had
been designated as privileged. McComish explains that she took
her interviews notes and filed them in a file that bore the name
of the Capitol Manager being investigated (M.K.). Thus, when she
was asked by counsel to forward all documents relating the Roy
Banks litigation, she did not send her notes because she did not
believe that "they concerned the Roy Banks litigation." Id.
When, however, Banks filed the motion I am now resolving and
McComish saw Exhibit A, the notes of the interviews that Banks'
counsel had secured from the SAA's counsel, she checked her file
and realized that she had additional notes concerning the
investigation she had done in June 2003. At that point, she
forwarded the additional notes to counsel. She also checked with
two other persons who had been present during the June 2003
interviews, Barbara Berger ("Berger") and Alvin Macon ("Macon").
Macon had no notes, but Berger did. All the notes, including
McComish's, were then forwarded to SAA counsel who has since made
them available to Banks' counsel.
Banks claims that, had he timely received the Investigatory
Notes, he would have conducted discovery very differently. Accordingly, Banks seeks
sanctions, including $217,104 in attorney's fees,*fn5 the
reopening of discovery at defendant's expense, and even a default
I see no merit in this application.
Banks insists that the notes should have been produced in
response to Interrogatory Number 8 but, as Pence explained, the
interrogatory sought information pertaining to any investigation
conducted to determine whether S.R. made any statement comparing
African-American workers with Hispanic workers. It was certainly
reasonable for Pence to conclude that an investigative report
pertaining to whether M.K. made certain discriminatory comments
was unresponsive. This is so even though some of the answers, and
thus some of the follow-up questions, named S.R. and other
managers specifically. Moreover, Pence was perfectly correct in
objecting to the interrogatory as part of her argument that Banks
had propounded too many interrogatories and SAA was not obliged
to answer the interrogatory until I resolved the objection, which
I did in June 2004. Banks v. Office of Senate Sergeant-at-Arms,
222 F.R.D. at 10-11.
By the same token, I appreciate plaintiff's argument that, on
their face, the Investigatory Notes state that the investigation
concerned whether "any Capitol Facilities manager or supervisor"
had made discriminatory remarks. Because S.R. is a Capitol
Facilities manager, the Notes seem to indicate that he, too, may
have been a target of the investigation. Pl.'s Mot. at 12.
Indeed, McComish's handwritten notes, which were produced in
March 2005, indicate that she asked some follow-up questions specifically about S.R., but there
is no evidence that the investigation was conducted, initially or
primarily, to inquire into S.R.'s behavior.
To the contrary, defendant has explained that the investigation
itself was made to determine whether M.K., not S.R., had made
racially discriminatory statements. In support, defendant
attaches the declarations of both Pence and McComish. Indeed,
even without these declarations, one could conclude that M.K. was
the target of the investigation. Although the questions did not
mention M.K. specifically and instead asked about Capitol
Facilities managers, supervisors, and management (a group that
included M.K.), it makes sense for the employer not to indicate
the specific target of the investigation, lest the questions
themselves suggest the manager's guilt or involvement. In
addition, included in the defendant's production of documents is
a copy of the folder in which McComish filed the Investigatory
Notes. That tab bears the names of K.C. and M.K. and thus
supports McComish's statement that she believed that the
investigation even after it was complete related to an
employee other than S.R. Accordingly, there is substantial
evidence to justify Pence's and McComish's conclusions that the
investigation did not concern S.R. and were not responsive to
Interrogatory Number 8 or Document Request Number 10.
Accordingly, their actions simply do not warrant sanctions,
especially sanctions of the magnitude sought by plaintiff.
Nonetheless, it is evident from the Investigatory Notes and
McComish's and Berger's handwritten notes that the June 2003
investigation uncovered information about whether certain
employees, namely K.C. and M.K., thought that S.R. managed in a
discriminatory manner. Indeed, there is also evidence that, as
the investigation into M.K. unfolded, the SAA began to ask
witnesses follow-up questions specifically about S.R. In
fairness, to allow plaintiff the full benefit of all evidence that is relevant to this action, I will
allow additional but very limited discovery related to the
Notes. The scope of this additional discovery will be set forth
b. First Document Request Numbers 2 and 4
In his reply memorandum, plaintiff fleshes out his argument
that the Investigatory Notes were responsive to First Document
Request Numbers 2 and 4.*fn6 Request Number 2 asked for "[a]
complete copy of each and every file maintained by Defendant
pertaining to the claims made by Plaintiff." Plaintiff's Reply
in Support of His Motion ("Reply") at 6. Request Number 4 asked
for "[a]ll documents from any meeting or conversation which
concerned the subject of this lawsuit or Plaintiff's
allegations." Id. at 5-6.
First, it is worth noting that the document requests ask for
two very different things. Reasonably construed, Banks' claims
include his complaints that he was discriminated against on the
basis of race, age, alleged disability, sex, or in retaliation
for complaints he had made. His allegations, on the other hand,
include the specific events upon which he bases his
Indeed, in several paragraphs of one of his complaints, Banks
alleges that S.R. favored Hispanics and disfavored African-Americans. For example, he
alleges that S.R. was discriminatory in the way he disciplined
employees, assigned work, and granted promotions. Complaint,
Civ. A. No. 03-2080 ("Complaint") ¶ 68. The complaint also
alleges that Banks informed the Director of Human Resources that
S.R. had made discriminatory statements, was favoring Hispanics,
and felt that Hispanics were better workers than African
Strictly construed, therefore, Document Request Number 4 asks
for materials documenting any conversations concerning S.R.'s
alleged discriminatory behavior. This differs from Interrogatory
Number 8 because the information need not have been gleaned
during an investigation of S.R. However, to read this document
request as a request for information concerning each paragraph
alleged in Banks' complaints is problematic. At the time the
discovery requests were propounded, Banks had filed three
complaints, all of which had been consolidated for discovery
purposes on October 13, 2003. The complaint in Civil Action No.
03-56 contained 60 allegations, the amended complaint in Civil
Action No. 03-686 contained 78 allegations, and Civil Action No.
03-2080's complaint contained 157 allegations. While many of
these allegations overlap, the fact remains that the three
complaints set out plaintiff's case in 295 separate paragraphs.
Confronted with a request to produce documents pertaining to
the complaints or the allegations in them, Pence was not obliged
to answer them immediately because the request incorporated an
interrogatory, and she objected to the number of interrogatories
propounded. Once that objection was overcome, there were two
permissible readings of the request: (1) it sought documents
pertaining to Banks' claims that he was discriminated against
when he was terminated for making a racist statement; or (2) it
sought documents pertaining to each of the 295 allegations in the complaints so that a document that pertained
to any one of those allegations was demanded.
There are two problems with finding that the only justified
response was to read the document request according to the second
interpretation. First, in this case, there were just under 300
allegations, and according to the second interpretation, Pence
would have been obliged to answer the equivalent of hundreds of
requests to produce. Letting a demanding party seek information
in this manner would prompt a diligent opponent to object on the
grounds of vagueness or burdensomeness whenever a complaint
contained many specific allegations. It would also excuse the
requesting party from Rule 34's requirement that a demanding
party describe each request "with reasonable particularity."
See Fed.R.Civ.P. 34(b). Had Banks wanted documents that
supported his allegations that S.R. or other managers were
discriminatory and were not punished as he was, or that his
complaints about S.R.'s discriminatory behavior were justified,
he should have structured his request accordingly. His failure to
specify what he wanted counts against him, not against his
Second, compared with the first reading, interpreting the
request as requiring information relating to each specific
allegation that supported Banks' actionable claims is an
unnatural reading of the request. Requests to produce documents
are answered by lawyers, and lawyers would reasonably read a
request for documents pertaining to plaintiff's claims and
allegations to mean documents pertaining to Banks' complaints
about his treatment. While it could also mean documents
pertaining to all the allegations Banks made, paragraph by
paragraph, that reading is obviously so much more demanding that
it would not naturally occur to a lawyer. While, with hindsight,
one could read the request as broadly as Banks has, it cannot be
said that the more limited and natural reading is unreasonable to the point of
justifying the sanctions Banks seeks. Indeed, to the contrary,
the court concludes that Pence's reading of the request was
"substantially justified" and therefore not sanctionable.
However, as indicated above, because the Notes reveal
information that may be relevant to plaintiff's claims, I will
exercise my discretion and allow plaintiff to conduct very
limited additional discovery, as explained in detail later in
c. Rule 30(b)(6) Deposition Topic Number 25
Rule 30(b)(6) Deposition Topic Number 25 provides: "Whether
there has been, and the number of investigations defendant has
taken concerning any claim by Mr. Banks. . . ." Pl.'s Mot. at 9.
When, during the 30(b)(6) deposition, Banks' counsel inquired
about investigations into Banks' claims of racial discrimination,
SAA's counsel objected and refused to permit McComish, the
30(b)(6) deponent, to answer.*fn8 Banks complains that the
SAA purposely objected to questions concerning this topic, and
even requested a mysterious water break, in order to keep hidden
the Investigatory Notes.
But, Banks ignores the fact that the topic sought information
concerning investigations into why Banks was terminated, not
about whether S.R. or any other manager was engaging in
discrimination. Additionally, even if McComish answered counsel's
questions and her attention was drawn to her notes of the
investigation she conducted in June 2003, she would have said
that the investigation was not about any claim of racial
discrimination Banks made but about whether another employee,
M.K., had made certain comments. Thus, Banks suffered nothing
from not having the notes during the deposition. In addition, defendant
explains that McComish was designated as the 30(b)(6) deponent to
testify about Banks' claims of disability discrimination, not
racial discrimination. Therefore, counsel's questions regarding
investigations into racial discrimination were to be asked of the
other 30(b)(6) deponent, Macon, whose deposition remains open. I
find nothing suspicious about these objections, nor do I find
d. Rule 26(a)(1) Initial Disclosures
Finally, plaintiff argues that the Investigatory Notes ought to
have been identified in defendant's Rule 26(a)(1) initial
disclosures. Rule 26(a)(1) states that the following information
must be produced without awaiting a discovery request:
(A) the name and, if known, the address and telephone
number of each individual likely to have discoverable
information that the disclosing party may use to
support its claims or defenses, unless solely for
impeachment, identifying the subjects of the
(B) a copy of, or a description by category and
location of, all documents, data compilations, and
tangible things that are in the possession, custody,
or control of the party and that the disclosing party
may use to support its claims or defenses, unless
solely for impeachment;
(C) a computation of any category of damages claimed
by the disclosing party[;] . . .
(D) for inspection and copying as under Rule 34 any
insurance agreement. . . .
Fed.R.Civ.P. 26(a)(1). For the reasons stated elsewhere in
this memorandum, it was reasonable for the defendant to conclude
that neither the Investigatory Notes nor the medical records
(discussed below) fell within any of these categories.
Plaintiff's argument that these documents should have been
produced as part of defendant's initial disclosures is without
2. Whether the Medical Records Were Responsive to Plaintiff's
Banks argues that defendant should be sanctioned for its late
production of another group of documents, which concern the treatment of a similarly situated
white female that was permitted to use all of her disability
leave before retiring. Pl.'s Mot. at 25. Banks wants to depose
all of the individuals identified in the late-produced documents,
including Catherine Brooks (who handled the worker's compensation
claims of both Banks and the white female); McComish (who
supervised Brooks); Fertig (who was involved in decisions
regarding the continuation of pay); and several others who were
involved in these issues. Id.
According to defendant, the medical records were not responsive
to any discovery requests, and therefore plaintiff was not harmed
by their late production and is not entitled to sanctions. Def.'s
Opp. at 11.
Plaintiff insists that the medical records were requested in
discovery. Banks' complaint states that the defendant improperly
"delayed benefits that Mr. Banks was entitled to receive and
benefits which were provided to other SAO employees who did not
file complaints." Complaint, ¶ 85. Because Document Request
Numbers 2 and 4 seek information relating to Banks' complaints
and allegations, Banks argues that the medical records were
responsive to these requests. For the reasons stated above,
however, to credit such an argument would allow plaintiff to
avoid the requirements of Rule 34(b). In addition, given the
lengthy allegations in this case and the availability of two
reasonable interpretations of the request, such a reading would
place an unjustifiable burden on defendant, and I will not allow
it. There has been no argument that plaintiff propounded an
interrogatory or document request for the medical records of
other employees, and therefore the documents, whenever they were
produced, cannot be considered "late."
3. The Relief Sought Plaintiff insists that the Investigatory Notes provide "strong
circumstantial evidence that S.R. did discriminate against Blacks
in favor of Hispanics and support Banks' contention that he was
fired for bringing this fact to the attention of the Director of
Human Resources and in retaliation for filing his earlier
complaints." Pl.'s Mot. at 17-18. He further states that he
"would have prepared his case much differently with the knowledge
that there was evidence that defendant did not have a consistent
zero tolerance policy," id. at 12, "[a]nd that his retaliation
claims were solidified by [K.C.] and [M.K.]." Reply at 8.
Finally, he claims that he was "extremely prejudiced by the
withholding of Investigative Notes which reveal? other similarly
situated employees were not even disciplined for making the same
comments that Banks was terminated for allegedly making." Pl.'s
Mot. at 18. Accordingly, Banks seeks to re-depose, at defendant's
expense, every witness that has testified in this case and all
individuals involved with the Investigatory Notes. Id. at 26.
He also seeks other sanctions, including a default judgment.
As stated above, this court has concluded that defendant did
not purposefully hide the Investigatory Notes and that defendant
was substantially justified in concluding that they were not
responsive to plaintiff's discovery requests, except for the
Third Request for Production of Documents.*fn9 Accordingly,
the Notes were, at most, one month late, and the only discovery
outstanding during this time period was the open deposition of
Macon, which remains open today. Given these findings, the court
cannot see how the late production of the Notes has caused any of
the harm Banks claims it has caused. Moreover, to award Banks
over $217,000 in attorney's fees, additional discovery at
defendant's expense, or a default judgment would unquestionably violate "[t]he central requirement of Rule 37 . . .
that `any sanction must be `just'" and proportional to the
wrong done. See Bonds, 93 F.3d at 808 (internal citations
By the same token, to ensure that Banks has the opportunity to
gather all relevant evidence, this court will allow plaintiff the
following limited discovery. Banks may depose, at his own
expense, Jean McComish, Barbara Berger, Doug Fertig, K.C., M.K,
and S.R.*fn10 Each deposition shall last no more than two
hours, and the questions shall be limited to: (a) the questions
asked and answers provided during the June 2003 investigation;
(b) any subsequent interviews that were or appeared to be about
discriminatory remarks or behavior by any Capitol Facilities
manager or supervisor; and (c) the decision to pursue or not to
pursue disciplinary action against anyone mentioned during the
investigation, including M.K. and S.R.
An Order accompanies this Memorandum Opinion.