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Long v. Howard University

June 25, 2008

DAVID LONG, PLAINTIFF,
v.
HOWARD UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff David Long, a former doctoral ("Ph.D.") candidate at Howard University, brought this action against the University alleging, among other things, discrimination on the basis of disability in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.. On December 20, 2006, the jury returned a verdict finding that defendant had failed to provide a reasonable accommodation for plaintiff's disability in violation of the Rehabilitation Act, but concluding that the claim was barred by the statute of limitations. After post-trial motions challenging the verdict were filed, the Court upheld the verdict and also entered judgment in defendant's favor on plaintiff's non-jury equitable claims under the Rehabilitation Act and the ADA, finding those claims also were barred by the statute of limitations. See Long v. Howard Univ., 512 F. Supp. 2d 1 (D.D.C. 2007).

Despite -- or perhaps because of -- the adverse judgment on all claims, plaintiff thereafter stated his intent to seek an award of attorneys fees for alleged discovery violations, notwithstanding the closure of discovery almost two years earlier. The Court granted leave to file the motion, observing that the timeliness of the motion was in serious question and reserving the resolution of that issue until after full briefing. See Order at 1-2 (filed Sept. 20, 2007). The motion for discovery sanctions is now fully briefed. Plaintiff contends that he should be awarded over $186,000 in attorneys fees under Fed. R. Civ. P. 37(c), on the grounds that (1) defendant allegedly concealed information and documents that were responsive to plaintiff's interrogatories and requests for production of documents; and (2) defendant improperly failed to admit that plaintiff was disabled within the meaning of the ADA or Rehabilitation Act, in response to his requests for admission. Defendant opposes the motion as untimely and on the merits. Also pending is defendants' contested bill of costs seeking to recover $11,766.75 for court reporter fees and other miscellaneous costs and plaintiff's motion to stay determination of costs. For the reasons stated below, the Court will deny plaintiff's motion for sanctions and award costs to defendant in the amount of $11,632.75, but will defer taxation of those costs until the appeal of this matter has concluded.*fn1

I. Alleged Concealment of Documents and Other Information

Plaintiff propounded discovery requests in February 2003, that, inter alia, sought information concerning all students who had been allowed to exceed the University time limits on validity of academic credits (the "ten-year rule"), an accommodation that he alleged was unlawfully denied to him.*fn2 Plaintiff contends that the University had compiled a list of students for whom time limits had been waived -- information responsive to his discovery requests -- but concealed that information from plaintiff until February 2004 and withheld related documentation until September 2005. See Pl.s' Mot. for Sanctions at 1, 8-10.

As plaintiff acknowledges, the Court first addressed the adequacy of the University's discovery responses over four years prior to the filing of his present motion for sanctions. The University initially responded to plaintiff's discovery requests on April 8 and 14, 2003, objecting on the grounds that the requests were overly broad and unduly burdensome, and improperly sought the release of confidential student information in violation of the Family Education Rights and Privacy Act, 20 U.S.C. § 1232(g). See Def.'s Opp., Ex. B; Pl.'s Mot. for Sanctions, Ex. 1. The University also provided a limited response to the interrogatories, including a terse acknowledgment that "[t]here have been occasions since 1986-1987 when a student in the Graduate School was awarded a graduate degree after being enrolled in a program beyond the time limit." Pl.'s Mot. for Sanctions, Ex. 1, at 9. On May 19, 2003, plaintiff filed a motion to compel, and the University reiterated its previous objections (emphasizing that there were 36 degree programs in the Graduate School), and also disputed the relevance of the information. See Pl.'s Mot. to Compel (Doc. No. 16, filed May 19, 2003); Def.'s Opp. to Mot. to Compel (Doc. No. 30, filed June 16, 2003). After holding a hearing on August 20, 2003, the Court narrowed plaintiff's discovery requests and required the University to make disclosure from approximately ten academic departments, with other limitations applying.*fn3 See Order ¶ 3 (filed Aug. 20, 2003).

That Order also denied plaintiff's earlier request for sanctions. Id. ¶ 7.

After further wrangling between the parties concerning, among other things, which ten departments had to produce information,*fn4 on February 26, 2004 plaintiff obtained a list of more than 100 students who had taken longer than ten years to complete their Ph.D. degrees -- a list that was revealed through the deposition of Associate Dean Emmanual Glakpe one day earlier, referred to as "Table 1." See Pl.'s Mot. for Sanctions at 5-9 & Ex. 13. This information had been in the University's possession since March 17, 2003, when it first received plaintiff's discovery requests. See id. Ex. 14; see also id. at 7-9 (summarizing Glapke Depo. at 161-74). In the University's view, the mere fact of a student's enrollment for a period exceeding ten years was not probative of whether the "10-year rule" had been waived because the list did not reveal whether the coursework was "counted" toward the degree or whether "course restoration" requirements were applied to the student -- information not readily available and not shown on the list. See Def.'s Opp. at 10-11. After filing a further motion to compel on July 29, 2005, plaintiff obtained the available course restoration forms and other related documents by September 2005. See Pl.'s Mot. for Sanctions at 1 n.1. Plaintiff did not seek sanctions at that time.

With this background, the Court considers whether plaintiff's motion for sanctions is timely and whether plaintiff is entitled to sanctions. Rule 37(c)(1) states:

(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving opportunity to be heard:

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(1). Although this provision does not establish any express time limits within which a motion for sanctions must be filed, unreasonable delay may render such a motion untimely. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994) (observing that, in the context of Rule 37(b), "unreasonable delay" standard applies even in the absence of a specified time limit); Mercy v. County of Suffolk, New York, 748 F.2d 52, 56 (2d Cir. 1984) ("[A] motion for Rule 37 sanctions should be promptly made, thereby allowing the judge to rule on the matter when it is still fresh in his mind . . . . Indeed, the motion should normally be deemed waived if it is not made prior to trial . . . ."); Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 886 (S.D.N.Y. 1999) ("While Rule 37 does not establish any time limits within which a motion for sanctions must be filed, unreasonable delay may render such motions untimely").

The timeliness of a motion for sanctions depends on such factors as when the movant learned of the discovery violation, how long he waited before bringing it to the court's attention, and whether discovery has been completed. See Brandt, 30 F.2d at 756; In re Teligent, Inc., 358 B.R. 45, 59 (Bankr. S.D.N.Y. 2006); see also Glenn v. Scott Paper Co., No. 92-1873, 1993 WL 431161, at *17 n.3 (D.N.J. Oct. 20, 1993) (holding that wrongful withholding of evidence should have been addressed "before completion of ...


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