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.
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 ...