United States District Court for the District of Columbia
June 3, 2005.
LAWRENCE CALDWELL, Plaintiff,
CENTER FOR CORRECTIONAL HEALTH AND POLICY STUDIES, INC. et al., Defendants.
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
In accordance with the accompanying Memorandum Opinion, it is, hereby,
ORDERED that Plaintiff's Motion for Sanctions Pursuant to
Federal Rule of Civil Procedure 37 for Failure to Comply with the
Court's Orders [#47] is GRANTED in part and DENIED in part.
It is further, hereby,
ORDERED that counsel shall individually show cause, within ten days of the
date of this Order, why I should not sanction each of them for behavior
during the discovery process as outlined in the accompanying Memorandum
Opinion. It is further, hereby,
ORDERED that counsel meet and confer within ten days of this
Order, to resolve any outstanding interrogatories and requests to
produce documents. If the parties are unable to resolve any
outstanding matters, they shall, within twenty days of the date
of this Order, file a joint praecipe certifying that they have
made a genuine effort to resolve their differences but failed.
Plaintiff may then, by that same latter date, move to compel any
additional responses or documents.
SO ORDERED. MEMORANDUM OPINION
This case was referred to me for all discovery disputes.
Currently pending and ready for resolution is Plaintiff's Motion
for Sanctions Pursuant to Federal Rule of Civil Procedure 37 for
Failure to Comply with the Court's Orders. For the reasons
stated below, plaintiff's motion will be granted in part and
denied in part.
Plaintiff, Lawrence Caldwell, ("plaintiff") was previously
confined as a prisoner at the Central Detention Facility in the
District of Columbia. According to plaintiff, while he was an
inmate, he required the medical services of The Center for
Correctional Health and Policy Studies, Inc., and others ("CCHPS"
or "defendants"). The basis of plaintiff's civil suit against
defendants is that the dental, eye, skin cancer, and transport
services provided by defendants were not adequate and that he
also suffered retaliation as a result of his complaining about
the quality of the care he received. Amended Complaint for
Monetary Damages, Declaratory Relief, and a Trial by Judge.
I. The Course of Discovery
On March 15, 2004, plaintiff served defendants with
interrogatories, requests for admission, and document requests.
Memorandum of Law in Support of Plaintiff's Motion for Sanctions
Pursuant to Federal Rule of Civil Procedure 37 for Failure to
Comply with the Court's Orders ("Plains. Mem."), Wallach
Declaration at 1. On June 3, 2004, at a status hearing held
before Judge Kessler, discovery was stayed and the case was
referred for mediation. Plains. Mem., Exhibit 1. By order of the
same date, the court indicated that the parties were still
obliged to respond to any outstanding discovery requests,
"including Defendants' identification of expert witnesses due on
June 8, 2004," but that any additional discovery was stayed.
Id. On July 30, 2004, defendants responded to plaintiff's
requests for admission. Plains. Mem., Wallach Declaration at 2.
On August 17, 2004, another status hearing was held before
Judge Kessler. By minute entry of the same date, the court set a
discovery deadline of December 1, 2004, thus lifting the
previously imposed stay. Id. at 3. On October 28, 2004,
defendants responded to the majority of plaintiff's document
requests and on December 29, 2004, defendants supplemented that
On January 3, 2005, I had a telephone conference call with
counsel. Following the call, I ordered, inter alia, defendants
to reply to any outstanding interrogatories by January 17, 2005,
and indicated that plaintiff could, by the same date, move to
compel if the answers were not received. Plains. Mem., Exhibit 3.
I also indicated that the parties would have until January 17, 2005 to schedule any remaining depositions and that plaintiff
would have 7 hours to depose Dr. Hammond and the 30(b)(6) witness
and 3.5 hours for each remaining witness. Id. On February 3,
2005, plaintiff filed the instant motion.
II. Plaintiff's Motion
Plaintiff claims that the defendants have "willfully violated
two of the Court's orders and ignored discovery obligations under
the Federal Rules of Civil Procedure to respond to
interrogatories and appear for deposition" and thus has moved for
sanctions under Rule 37(b)(2) and 37(d). Plains. Mot. at 1.
First, plaintiff claims that defendants violated the court's
orders of June 3, 2004 and January 3, 2005 by failing to respond
to plaintiff's interrogatories. Plains. Mem. at 1. Second,
plaintiff claims that defendants violated the court's order of
January 3, 2005 by failing to schedule all remaining depositions
by January 17, 2005. Id. Plaintiff therefore asks the court to
do the following: 1) enter a default judgment against defendants,
2) hold defendants in contempt and levy a monetary sanction
against them, and 3) award plaintiff its expenses and associated
attorneys fees. Plains. Mem. at 2.
III. Legal Standard
As I noted most recently in the case of Peterson v. Hantman,
227 F.R.D. 13 (D.D.C. 2005):
Under Federal Rule of Civil Procedure 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 staying the proceedings pending compliance
with a court order, taking certain facts as
established, prohibiting a party from introducing
certain matters into evidence, finding a party in
contempt of court, and dismissing the action or any
part thereof. See id. The court also has the
authority to award reasonable expenses, including
attorney's fees, 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."
* * *
District courts are entrusted with broad discretion
regarding whether to impose sanctions under Rule 37,
and the nature of the sanctions to be imposed. Bonds
v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir.
1996); Sturgis v. Am. Ass'n of Retired Persons,
1993 WL 518447 (D.C. Cir. 1993) (per curiam);
Steffan v. Cheney, 920 F.2d 74, 75 (D.C. Cir.
1990)). However, the court's discretion is not
without limits. Indeed, this Circuit has emphasized
any sanctions awarded must be proportional to the
underlying offense. Bonds, 93 F.3d at 808.
Id. at 16.
Relief may also be awarded by the court pursuant to Rule 37(d)
of the Federal Rules of Civil Procedure, if a party fails to
attend his or her own deposition, answer interrogatories, or
respond to a request for inspection. Fed.R.Civ.P. 37(d).
A. Defendants' Failure to Attend Noticed Depositions
It is true that defendants' failed to attend noticed
depositions. However, it is also true that plaintiff repeatedly
noticed depositions without first conferring with defendants. As
stated by plaintiff in a letter to defendants dated October 29,
2004, "As I also explained in our telephone conversation, my
standard practice is to notice depositions for specific dates and
then, if opposing counsel or the witness have conflicts, to
adjust the dates. In the future, if I unilaterally notice a
deposition for a date that is inconvenient for you or your
witness, please feel free to call me and I will do my best to
continue the deposition to a date that is convenient." Plains.
Mem., Exhibit 4. Given that plaintiff never bothered to confer
with his opponent prior to noticing a deposition, is it really
that surprising that defendants were, on several occasions,
unable to attend?
The following charts indicates what resulted from the manner in
which these lawyers treated each other:
Date Plaintiff Date Plaintiff Proposed for Date of Defendant's Response
Noticed Depositions Indicating His Unavailability
10/22/04 on or after 11/1/04 10/28/04
11/04/04 11/15/04 None
11/08/04 11/16/04 11/08/04
11/17/04 12/01/04 30(b)(6) 11/18/04
11/19/04 11/30/04 11/22/04
Date Proposed by Date Plaintiff Communicated Response by defendant
Plaintiff for Proposed Dates
12/13/04 11/30/04 None
12/16/04 12/13/04 12/17/04
There are several remarkable aspects regarding these exchanges.
One lawyer would set dates for depositions without calling his
opponent to see if the dates were acceptable. The other lawyer
would then say he was unavailable but not once did he offer
alternative dates. On some occasions, the latter did not respond
to the dates proposed by his opponent. Thus, we have the lawyers'
merry-go-round. Nobody gets a brass ring but two months are
consumed, nasty letters fly back and forth, and nothing gets accomplished. What is even
more startling is that neither lawyer shows any compunction about
ignoring the discovery deadlines that Judge Kessler and I set.
Instead, the deadlines are ignored and it does not occur to
either lawyer to pay Judge Kessler or me the courtesy of moving
for an enlargement of time within which to complete discovery.
In my view, this waste of time is the exact of opposite of what
I intended when I spoke to the lawyers and tried to resolve the
controversy that had developed. In my naiveté, I intended for
the lawyers to work together to find dates on which all the
outstanding depositions could be taken. This would have taken
well meaning lawyers who wished to cooperate with each other an
hour. What I got was two months of an utter failure to cooperate
and the opportunity to waste the taxpayers' money by writing this
opinion which would have been unnecessary had I not had to play
hall monitor in the kindergarten.
At times the sanctioning power, whatever its legal premise,
seems to assume that only one side is at fault and should be
sanctioned. It has been my consistent experience, however, that
there is a kind of Gresham's law of incivility in discovery in
which bad behavior drives out good behavior. Let one lawyer act
like a beast and the other, affronted by this attack, will match
him tit for tat. In such a situation, the mess that the court has
to resolve is the product of the behavior of both of them,
although one of them, in classic schoolyard fashion, "started the
fight." This case is a good example of what I mean: while defense
counsel can be criticized for never proposing alternative dates
and on occasion simply ignoring plaintiff's counsel's requests,
plaintiff's counsel made his opponent's response nearly
inevitable by peremptorily setting dates for depositions without
checking with his opponent first. For the life of me, I cannot
understand why sitting in a room with their own and their
witnesses' calendars could not have eliminated the entire problem.
Since I am of that view, I have decided that fairness requires
me to consider sanctioning both of them and to insist that they
personally, rather than their clients, be required to pay
whatever sanction I impose. I appreciate that this might be
viewed as revolutionary and to that end I will permit each lawyer
to convince me that I lack authority to do so or that I am
misreading the record and it is unfair to punish them both. The
Order accompanying this memorandum sets deadline for counsel to
file pleadings addressed to those questions.
B. Defendants' Failure to Adequately Respond to
Plaintiff also claims that defendants failed to adequately
respond to interrogatories when they responded with one or
two-word objections such as "overly broad" or "burdensome." I,
like all members of the federal judiciary, have concluded that
"[a]n objection must show specifically how an interrogatory is
overly broad, burdensome or oppressive, by submitting affidavits
or offering evidence which reveals the nature of the burden."
Chubb Integrated Sys. Ltd. v. Nat'l Bank of Washington,
103 F.R.D. 52, 59-60 (1984). See e.g., United States ex rel.
Fisher v. Network Software Assocs., 217 F.R.D. 240, 246 (D.D.C.
2003); Athridge v. Aetna Cas. & Surety Co., 184 F.R.D. 181, 191
Although the objection based on burdensomeness has been waived,
plaintiff is not entitled to demand from defendants information
that is neither relevant to a claim or defense nor likely to lead
to information that is. See Fed.R.Civ.P. 26(b)(1); Byrd v.
Reno, No. CIV.A.96-2375, 1998 WL 429676, at * 9 (D.D.C. Feb. 12,
1998). In addition, as much, if not all, discovery has already
taken place, I am going to order that counsel meet and confer as
to all interrogatories and requests to produce documents to see
if they can resolve whether defendants must provide more information than they have. If the parties can resolve their
differences, the matter will end. If they cannot, they will first
file a joint praecipe certifying that they have made a genuine
effort to resolve their differences but could not. Plaintiff may
then move to compel any additional responses.
If such a motion and opposition is filed, I will deem counsel
to be certifying that, given all the discovery plaintiff has
already had, the additional discovery is neither cumulative nor
duplicative and that the opposition to it is truly justified by
the significance of the information sought and that the
expenditure of additional judicial resources that it will take to
resolve the motion. If I find that certification not to be true,
I will sanction the offending lawyer. If that sounds like I have
reached the limit of my patience, it is because I have. I tried
the carrot by resolving the parties' problems in scheduling
depositions. I am now reaching for the stick and I can only hope
that a word to the wise is sufficient.
C. Defendants' Failure to Move for Enlargements of Time
It is clear from the record that in numerous instances,
defendants failed to file timely responses to plaintiff's
discovery requests. As argued by defendants, "there is an
explanation for CCHPS' alleged delay in responding to discovery
involving the departure of CCHPS' Administrator from the
organization on December 15, 2004. The CCHPS Administrator,
Estelle Hunter, was responsible for responding to all discovery
requests, including answering interrogatories and providing
deposition dates, for CCHPS. Her departure and the process
involved in identifying her successor have resulted in the most
recent difficulties in providing the requested discovery."
Defendant's Memorandum of Points and Authorities in Opposition
to Plaintiff's Motion for Sanction ("Defs. Opp.") at 1-2. What is not clear is why defendants did not simply move for
enlargements of time within which to respond. The fact that the
CCHPS Administrator recently left the agency is an appropriate
basis for a motion for an enlargement of time it is not,
however, an appropriate excuse for defendants' failure to make
such a motion. That defendants served responses to
interrogatories on February 11, 2005 is of no moment since the
scheduling order that was in effect at the time of plaintiff's
filing of the current motion for sanctions was my Order of
January 3, 2004, which stated that defendants must answer all
outstanding interrogatories by January 17, 2005. Plaintiff,
therefore, will be awarded reasonable attorneys fees associated
with the filing of that portion of its motion devoted to
defendant's failure to respond to the interrogatories in a timely
D. The Nature of the Relief Sought
Through this motion, plaintiff seeks the ultimate sanction: a
default judgment.*fn1 Citing Dellums v. Powell,
566 F.2d 231 (D.C. Cir. 1977), plaintiff argues that such relief is
warranted if for no other reason than its deterrent effect.
Plains. Mot. at 2. Plaintiff also cites Nat'l Hockey League v.
Metro. Hockey Club, Inc., 427 U.S. 639 (1976) and Weisberg v.
Webster, 749 F.2d 864 (D.C. Cir. 1984), as examples of cases
which have been dismissed as a result of the parties' failures to
comply with discovery obligations. Id. These cases are clearly distinguishable from the one at bar. In
Dellums, the issue before the court was whether the trial court
abused its discretion when it dismissed certain class action
plaintiffs for failing to respond to interrogatories. The court
held that the trial court did not abuse its discretion as to one
of the plaintiffs, because that plaintiff received the
interrogatories yet failed to answer them. The court further held
that the trial court did abuse its discretion as to two other
plaintiffs who apparently never received the interrogatories.
Id. at 236. The bases of the court's decision was two-fold.
First, as to the plaintiff who received the interrogatories yet
did not answer them, the court noted that he was well aware of
his obligation and simply failed to follow through. Second, the
court stressed the significance of the party's failure to respond
to interrogatories in the context of a class action:
Recognizing that discovery addressed to absentee
class members can be "a tactic to take undue
advantage of the class members or . . . a strategem
to reduce the number of claimants" and further that
Rule 23 of the Federal Rules contemplates that
absentee parties shall remain the passive
beneficiaries of class suits, courts have found it
necessary to restrict availability of discovery
against absentees to those instances in which a need
can be shown. This restriction creates a concomitant
obligation on the part of representative plaintiffs
to cooperate fully with discovery. Failure of a
representative plaintiff to respond to discovery or
to keep class counsel informed of his whereabouts is
a serious matter which ought to be discouraged by
Id. at 236. See also Work v. Bier, 107 F.R.D. 789, 791
(D.D.C. 1985) (citing Dellums and noting that where there is no
clear evidence of bad faith, the entry of a default judgment for
a discovery abuse is unwarranted).
In National Hockey, the Supreme Court reversed the appellate
court and upheld the trial court's dismissal of an action based
on the extenuating circumstances surrounding plaintiff's failure
to file timely answers to interrogatories. Unlike the behavior at
issue in the case at bar, in National Hockey, the Court concluded that the trial court acted
appropriately by dismissing the case in light of plaintiffs'
"`flagrant bad faith' and their counsel's `callous disregard' of
their responsibilities." Id. at 643. In support of its
decision, the Court even quoted the trial court's description of
The District Court, in its memorandum opinion
directing that respondents' complaint be dismissed,
summarized the factual history of the discovery
proceeding in these words:
After seventeen months where crucial interrogatories
remained substantially unanswered despite numerous
extensions granted at the eleventh hour and, in many
instances, beyond the eleventh hour, and
notwithstanding several admonitions by the Court and
promises and commitments by the plaintiffs, the Court
must and does conclude that the conduct of the
plaintiffs demonstrates the callous disregard of
responsibilities counsel owe to the Court and to
their opponents. The practices of the plaintiffs
exemplify flagrant bad faith when after being
expressly directed to perform an act by a date
certain . . . they failed to perform and compounded
that noncompliance by waiting until five days
afterwards before they filed any motions. Moreover,
this action was taken in the face of warnings that
their failure to provide certain information could
result in the imposition of sanctions under
Fed.R.Civ.P. 37. If the sanction of dismissal is not
warranted by the circumstances of this case, then the
Court can envisage no set of facts whereby that
sanction should ever be applied.
Id. at 640-41.
Finally, in Weisberg, the appellate court upheld the trial
court's dismissal of the case based on plaintiff's repeated
failure to respond to discovery requests. Weisberg v. Webster,
749 F.2d at 872. As later noted by the court in Shepherd v. Am.
Broad. Cos., 62 F.3d 1469 (D.C. Cir. 1995) and discussed by the
court in Webb v. District of Columbia, 189 F.R.D. 180 (D.D.C. 1999), the key to the court's holding in Weisberg was
"`plaintiff's willful and repeated refusal to comply with an
order requiring him to respond to the defendant's discovery
requests concerning information that went directly to the merits
of the case . . . Moreover, the plaintiff's recalcitrance in
Weisberg had entirely halted the discovery process and
frustrated the defendant's ability to litigate its case.'" Id.
at 189 (citing Shepherd v. Am. Broad. Cos., 62 F.3d at 1480).
In Webb, the court likened the facts in the case before it to
those in Weisberg: "Again, the case currently before the Court
closely resembles the Court of Appeals' portrayal of the
appropriate dismissal in Weisberg. The pervasive combination of
illegal document destruction and unreasonably reticent discovery
practice in this litigation effectively prevented the plaintiff
from litigating his case. Furthermore, it precipitated an
unacceptable circumstance in which the plaintiff was forced to
either seek substantial last-minute discovery and forego
meaningful preparation for trial or proceed to trial without
critical evidence." Webb v. District of Columbia,
189 F.R.D. at 189.
In Webb, the court also reiterated the standard, articulated
in Shea v. Donohoe Constr. Co., 795 F.2d 1071 (D.C. Cir. 1986),
for the imposition of a default judgment as a sanction for
misconduct: 1) whether the opposing party's ability to present
its case has been so severely prejudiced that it would be unfair
to require him to proceed, 2) whether the burden placed on the
court is intolerable, and 3) whether there is a sufficient need
to deter similar conduct in the future. Webb v. District of
Columbia, 189 F.R.D. at 189.
In the case at bar, plaintiff's ability to proceed has not been
so severely prejudiced by defendants' actions. In fact, although
plaintiff filed the instant motion on Feb. 3, 2005, on April 1,
2005, Judge Kessler extended the discovery deadline to July 1,
2005 with dispositive motions due August 1, 2005. Therefore, the
delay plaintiff encountered in getting answers to the interrogatories has not prejudiced him. Second, the burden placed
on the court in having to resolve that portion of the motion
dealing with the interrogatories, while avoidable, does not rise
to the level of being intolerable. Third, the court expects that
the sanction it is imposing, having to pay attorneys fees, will
act as a sufficient deterrent against similar behavior in the
future. Thus, while the behavior exhibited by defendants in the
case at bar was inappropriate, it hardly rises to the level of
that described by the courts in National Hockey, Weisberg,
An Order accompanies this Memorandum Opinion.