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Moore v. Chertoff

December 17, 2008

REGINALD G. MOORE, ET AL., PLAINTIFFS,
v.
MICHAEL CHERTOFF, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION

Plaintiffs, ten African-American current and former special agents of the United States Secret Service, brought this employment discrimination action individually and on behalf of a putative class of African-American special agents. Plaintiffs allege, among other things, that the Secret Service has engaged in a pattern and practice of discrimination against African-American Special Agents in its promotion process for competitive positions at grades GS-14 and GS-15, and at the SES level. Plaintiffs allege discrimination in every step of the promotion process, from the discriminatory assignment of Merit Promotion Plan ("MPP") scores to the discriminatory selection of Special Agents for specific promotions. Second Amended and Supplemental Class Complaint ("Second Amended Complaint") (Document No. 362) ¶1.

The recalcitrance of Defendant in the conduct of discovery almost immediately became, and to this date remains, the most prominent feature of the record in this action. See, e.g., Joint Exhibit Regarding Orders Compelling Production from Defendant or for Sanctions ("Joint Ex. 3") (Document No. 565-3)at 2-5. Indeed, Defendant acknowledges that since discovery commenced in this action on December 3, 2004, the undersigned has entered (1) nine orders compelling Defendant to provide discovery; (2) an order denying a motion for protective order filed by Defendant; and (3) three orders imposing sanctions upon Defendant pursuant to Rule 37 of the Federal Rules of Civil Procedure. Id.; see also id. at 5-7 (summarizing Plaintiffs' contention that the number of rulings adverse to Defendant is higher than Defendant acknowledges). Plaintiffs' pending Motion for Sanctions ("Plaintiffs' Motion") (Document No. 488, Part 2), which is the subject of the instant Memorandum Opinion, arises from the grant of Plaintiffs' ninth motion to compel. See December 21, 2007 Docket Entry (granting said motion); September 12, 2008 Memorandum Opinion and Order (Document No. 587) (denying Defendant's motion for reconsideration of the order granting the motion to compel).

Upon consideration of the motion for sanctions; the memoranda in support thereof and in opposition thereto; the evidence adduced at the evidentiary hearing on the motion; the closing arguments of counsel; the parties' proposed findings of facts and conclusions of law and the entire record herein, Plaintiffs' Motion for Sanctions will be GRANTED.

BACKGROUND

On October 29, 2007, Plaintiffs filed a motion to compel the Defendant to comply with his Federal Rules of Civil Procedure obligation to conduct a reasonable search for paper documents responsive to Plaintiffs' requests for production of documents regarding their claims of discriminatory non-promotion. Plaintiffs' Motion to Compel Defendant to Comply With His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and For Sanctions (Document No. 488, Part 1) at 1.*fn1 In it, Plaintiffs submitted that on August 22, 2007, Defendant's 30(b)(6) designee testified that the Secret Service "had not searched the records of any decision-maker for documents related to discovery requests regarding Plaintiffs' claims of discriminatory non-promotion." Id. at 7-9 ( "For example, notwithstanding their integral involvement in the recommendations and selections for promotions, no search was conducted for the records of any current or former Director, Deputy Director, Assistant Director, Deputy Assistant Director or Special Agent in Charge."); see also id., Ex. 22 (Transcript of 30(b)(6) Deposition of Tracy Lawson) at 85-87, 95 (testimony affirming that Defendant did not search the records of Special Agents-in-Charge (SAICs) outside of the District of Columbia for documents relating to Plaintiffs' discriminatory promotion claims, or the records of SAICs, Deputy Assistant Directors (DADs), Assistant Directors (ADs), the Deputy Director, or the Director who are based in Washington, D.C. ). Plaintiffs sought an order directing the Defendant to conduct a reasonable search for and to produce all documents responsive to their requests for production, including "print and save" e-mails, "contemporaneous notes," and other documents "regarding the actual substantive promotion[] decisions made by the Secret Service supervisors and managers that adversely affected the Plaintiffs and the [putative] class." Id. at 1-2, 15-18. Additionally, Plaintiffs "request[ed] that Defendant's egregious behavior be sanctioned." Id. at 2.

Defendant opposed Plaintiffs' motion on the grounds that "(1) defendant has already agreed to produce all the documents at issue in this matter and is in the process of producing these documents; (2) plaintiffs did not complete their obligation to consult with defendant prior to filing their motion; (4) [sic] plaintiffs' discovery requests were not . . . reasonably calculated to seek this information . . . ; and (5) [sic] plaintiffs' motion to compel is untimely." Defendant's Opposition to Plaintiffs' Motion to Compel Defendant to Search Again for Potentially Responsive Documents and for Sanctions ("Defendant's Opposition") (Document No. 498) at 1-2. Defendant did not dispute the testimony of Ms. Lawson during her 30(b)(6) deposition; rather, he represented that he performed a "search for the paper documents created by the defendant's personnel and used by agency managers involved in the bid-selection process and produced these [sic] results[.]" Id. at 13. Defendant further maintained that Plaintiffs' motion should be "dismissed" [sic] as moot, given Defendant's "offers"to conduct searches for responsive paper documents, and his "tremendous effort to locate and produce these responsive paper documents." See id. at 8-10, 19. In support of his contention that he was making an effort to locate responsive paper documents, Defendant offered the declaration of Arthur Kuhn, Inspector, United States Secret Service (see id., Ex. 15), and represented that the declaration detailed Defendant's search efforts in November, 2007.

In their reply, Plaintiffs contended that Defendant withheld "highly probative and relevant contemporaneous records evidencing the actual decision-making process for the promotions at issue in the case." Reply in Support of Plaintiffs' Motion to Compel Defendant to Comply With His Discovery Obligation to Conduct a Reasonable Search for Responsive Paper Documents and For Sanctions ("Plaintiffs' Reply") (Document No. 505) at 2-3. Plaintiffs further maintained that

(1) Defendant made "boilerplate objections" in response to Plaintiffs' first and second sets of requests for production which were "insufficient under the Federal Rules of Civil Procedure," and did not "alleviate him of his obligation to search for and produce responsive information from the files and records of Secret Service supervisors and mangers" (id. at 4); and (2) Defendant's "production of Personnel Division records regarding the rote administration of the promotions process" did not excuse him from "searching for and producing responsive documents in the files of decision-makers regarding their actual substantive promotions decisions" given that "Defendant has not demonstrated that the documents are duplicative." Id. at 7. Plaintiffs rejected Defendant's contention that Defendant's "belated proposed search[]" rendered their motion to compel moot. Id. at 8. Plaintiffs maintained that Defendant's proposed search would include production of "official personnel files, employee files and other administrative documents[,]" which would not "contain contemporaneous evidence of the decision-making process." Id. at 9. Additionally, Plaintiffs submitted that such an effort would not be "calculated to locate all responsive documents to which Plaintiffs are entitled." Id.

On December 21, 2007, following an oral argument which extended over two hours, the undersigned granted Plaintiffs' motion to compel, and ordered Defendant to produce the documents which were the subject of the motion by no later than January 7, 2008. The undersigned also ordered Defendant to pay Plaintiffs' costs, including reasonable attorneys' fees, of moving to compel such discovery.*fn2 See December 21, 2007 Minute Entry. The undersigned reserved for future consideration Plaintiffs' motion for sanctions (Document No. 488, Part 2), and advised the parties that the award of costs and fees was "not the sole sanction that the Court intend[ed] to consider" and that a further hearing would be scheduled "with respect to the appropriate sanction." December 21, 2007 Tr. (Document No. 526) at 80.

THE PARTIES' CONTENTIONS

(1) The Parties' Written Submissions

Plaintiffs move the court to sanction Defendant "by not allowing him to defend Plaintiffs' individual and class prima facie case of discriminatory non-promotion."*fn3 Plaintiffs' Motion at 20. Plaintiffs contend that Defendant's "dilatory tactics" during the course of discovery, including the Defendant's "woeful failure to timely satisfy his discovery obligations in regard to both paper and electronic documents[,]" has prejudiced both the Plaintiffs and the court. Id. at 21-22. Plaintiffs further contend that Defendant's failure to search the records of decision-makers for responsive documents effectively puts Plaintiffs "back at square one with respect to discovery[,]" and that no lesser sanction will cure the prejudice to Plaintiffs and the court caused by Defendant's misconduct, or deter such misconduct in the future. Id.

More specifically, Plaintiffs assert that (1) they have exhausted "thousands of hours of attorney time and hundreds of thousands of dollars in out-of-pocket expenses[]" during the course of discovery, which included "conduct[ing] depositions without the discovery which they requested and to which they are entitled[]"; (2) additional discovery with respect to the decision-makers may be required "after receipt of documents located by Defendant in a reasonable search[]" for responsive paper documents; (3) during the course of discovery, the court "has expended countless hours" of time and resources to adjudicate discovery motions which led to orders for Defendant to "'do what the Federal Rules of Civil Procedure already require in no uncertain terms, and that is to search for the responsive documents and produce them[]'"; (4) Defendant's repeated failure to "search for the files of decision-makers . . . as . . . required by the Federal Rules of Civil Procedure, is disrespectful to the rights of Plaintiffs, . . . this court, the orderly administration of litigation, and the pursuit of justice[]"; and (5) to "[s]imply order[] Defendant to conduct the reasonable search that should have occurred within 30 days of service of Plaintiffs' discovery requests[,]" or "to do what was already required[] [under the Federal Rules of Civil Procedure][,]" would not remedy the prejudice to Plaintiffs. See generally Plaintiffs' Motion at 19-24.

Finally, Plaintiffs assert that no lesser sanction than the one they request is sufficient to ensure that Plaintiffs are not prejudiced in their ability to prove their case and that the integrity of the court is preserved. Plaintiffs' Motion at 26. Plaintiffs submit that "[t]he Court has the authority both under its inherent powers and under the Federal Rules of Civil Procedure to sanction Defendant for his misconduct in discovery." Id. at 21 (citations omitted).

Defendant contends--albeit erroneously--that the Plaintiffs seek the ultimate sanction of default judgment, and that "there is simply no evidence of misconduct . . . that would justify any sort of sanction[.]" See Defendant's Opposition to Plaintiffs' Motion for Sanctions ("Defendant's Opposition") (Document No. 498) at 27, 29.*fn4 Defendant maintains that "the documents wich [sic] [Plaintiffs] now claim to seek do not relate in any way to the statistical center piece [sic] of proof which is required in a pattern and practice case." Id. at 28-29.

In support of his opposition, Defendant generally contends that (1) no factual, statutory or procedural rule can serve as a basis for imposing the requested sanction; (2) Plaintiffs' allegations that they have been prejudiced are "purely speculative" and "unsupported proclamations of extreme prejudice"; (3) Plaintiffs fail to show how Defendant's "delay in producing any 'miscellaneous documents' that may exist would impact . . . Plaintiffs' ability to go to trial[]"; (4) "the Court's calendar has not been prejudiced by defendant's allegedly late production of any miscellaneous documents that may be located[]"; (5) the court should not consider "deterrence of misconduct" in its decision regarding Plaintiffs' request for a sanction, as this court has never found that defendant engaged in "flagrant or egregious misconduct in discovery[]"; and (6) Plaintiffs have not established that to the extent any sanction may be deemed warranted, a lesser sanction would not suffice. See Defendant's Opposition at 2, 19, 23-25.

Additionally, Defendant states that "[t]he plaintiffs have not given any reason why this dispute cannot be handled through the discovery process contained in the Federal Rules, as it has been in the past." Defendant's Opposition at 21, n.15. Defendant suggests that "any prejudice[] [suffered by the Plaintiffs], if any exists at all, is minimal[,]" and that he "sought to mitigate any adverse impact of this relatively minor delay by attempting to work with Plaintiffs to expeditiously retrieve the documents requested." Id. at 24 (emphasis supplied). Defendant maintains that "regardless of any relatively minor delay, any residual prejudice is further mitigated by the fact that responsive paper documents will have been produced in advance of (i) any class certification motion briefing, and (ii) any proceedings concerning the merits phase of the case being scheduled." Id.

In their reply, Plaintiffs maintain that they do not seek "the ultimate sanction of default judgment[,]" but rather, an "issue-related" sanction requiring Plaintiffs to "continue to bear the burden of proof with respect to their prima facie case." Plaintiffs' Reply at 11.*fn5 Plaintiffs contend that the sanction they request is warranted because "despite the twenty-three orders by this court requiring Defendant to comply with the Federal Rules of Civil Procedure, the issuance of sanctions that precluded Defendant from introducing certain evidence and required payment of attorneys' fees," Defendant failed to search the records of his decision-makers for responsive documents. Id. at 10-11. Plaintiffs identify two instances in which Defendant belatedly produced such documents, and maintain that such documents "reveal unfavorable and previously-undisclosed information about white selectees chosen over Plaintiffs and other [putative] class members." Id. at 13. Plaintiffs contend that they deposed the decision-maker involved, but did not have the benefit of his statements during the deposition. Id. Plaintiffs contend that they are entitled to support their class certification briefing with such non-statistical evidence, which is neither "miscellaneous" or "stray[,]" to prove Defendant's pattern and practice of discrimination. Id. at 15.

Plaintiffs contend that an examination of the record with respect to the conduct of discovery in this action compels the finding that lesser sanctions "have already been entered against Defendant as a result of his misconduct in discovery[,]" and that "there is no indication that Defendant's reaction to additional, lesser sanctions would [have any impact][.]" Plaintiffs' Reply at 16-17.Moreover, Plaintiffs argue that the record supports their contention that the judicial system has been prejudiced by Defendant's misconduct, and that "[a]fter twenty-three Orders to compel in a single case, Defendant cannot with a straight face claim that he has not shown "a willingness to subvert the Federal Rules of Civil Procedure." Id. at 15-16 (citation omitted); see also Joint Ex. 3.

(2) Synopsis of the Evidence Adduced During the Evidentiary Hearing*fn6

The evidentiary hearing on Plaintiffs' motion for sanctions, scheduled for January 10, 2008, ultimately consumed a total of sixteen days. During opening statements, Plaintiffs' counsel voiced Plaintiffs' intention to "demonstrate through live testimony to the Court the egregiousness of Defendant's violation"; "that the search that the Defendants [sic] did was completely inadequate . . . [in] that it had neither the intent nor the result of locating the documents to which Plaintiffs are entitled"; and "that Plaintiffs[,] . . . almost eight years after the case was filed, still do not have the documents that were created . . . which . . . are responsive to Plaintiffs' document requests." January 10, 2008 Evid. Hr'g Tr. (Document No. 555) at 12. Counsel for Defendant voiced Defendant's intention to "establish that there was absolute compliance with [the court's] order in December[,] [2007] ordering the Defendant to produce the documents that Plaintiffs requested by January 7th[]"; to "detail . . . exactly what steps were taken with regard to contacting current and former employees[]"; that a "thorough search [was] conducted by the various offices that [Inspectors Kuhn and Hunnicutt] queried about those documents and how [the Inspectors] followed up with regard to those mechanisms that they put together." Id. at 17, 20, 22.

A total of ten witnesses testified during the course of the sixteen-day hearing.*fn7 Only one witness, Barbara Saliunas, testified regarding Defendant's efforts in 2006 to search for and produce documents responsive to Class Plaintiffs' First and Second Set of Requests for Production of Documents, which Plaintiffs served on Defendant on May 23, 2006 and June 15, 2006, respectively.*fn8 In testimony elicited by the Defendant, Barbara Saliunas, a Secret Service Attorney-Advisor and former Deputy Chief of the Personnel Division, testified that the Special Agent Uniform Division Support Branch of the Personnel Division oversees the staffing and merit promotion process, a process by which individuals are selected competitively for promotions. March 19, 2008 Evid. Hr'g Afternoon Session Tr. (Document No. 548) at 13-15.

Ms. Saliunas enumerated the types of the "official promotion-related information" provided to the Personnel Division from Secret Service field offices and maintained by the Branch within its merit promotion files. Id. at 13-16. Ms. Saliunas testified that she believed the "merit promotion files were provided to the plaintiffs for inspection and copying in the late summer or early fall of 2006[.]" Id. at 20. Ms. Saliunas further testified on direct examination that it is possible that field offices may maintain promotion-related information that is not sent to the Personnel Division. Id. at 18. ("[I]t is possible that a field office may maintain -- for example, if a special agent in charge recommends selectees for a particular position within that office, that might be done through an e-mail. And if so, then they might maintain a copy in paper.").*fn9

During cross-examination, Ms. Saliunas characterized the Secret Service Advisory Board's role in the promotions process as that of discussion regarding the selectees and development of recommendations to the Director with respect to promotions or reassignments. She testified that the Board is comprised of the "deputy director and the assistant directors of the Secret Service." Id. at 46. She further testified that she did not know when the Deputy Director's office was first searched for responsive paper documents. Id. at 47.

Testimony regarding the activity undertaken by the Secret Service following the October 29, 2007 filing by Plaintiffs of their motion to compel and for sanctions (Document No. 488), and the December 21, 2007 Order granting the motion to compel, was the focus of the testimony of the remaining witnesses. United States Secret Service Inspector Arthur Kuhn testified that on October 31, 2007, he was directed by Kit Menches, SAIC of the Inspection Division, to work with the Secret Service's Office of Chief Counsel on "a special project[.]" January 10, 2008 Evid. Hr'g Tr. (Document No. 555) at 44-45. Inspector Kuhn testified that the Office of Chief Counsel directed him to conduct an e-mail inquiry of Secret Service supervisors at the GS-15 level and above, a category which included SAICs, Deputy Assistant Directors (DADs), Assistant Directors (ADs), Deputy Directors (DDs), and the Director. Id. at 46, 54. Inspector Kuhn's instruction, forwarded by e-mail on November 5, 2007 to approximately 182 supervisors, required each recipient to respond, by the close of business on November 8, 2007, by forwarding a copy of responsive records and a signed certification that the search was conducted.*fn10 Each individual was directed by Inspector Kuhn to search locations including "personal files," "office files," and "the office files for offices to which [they] were previously assigned when involved in the decision-making process[]" for "notes, letters, memoranda, emails (both paper and electronically saved), or any other paper documents that specifically relate to the 'selection decisions' for GS-14 and GS-15 promotions and reassignments from 1991 to 2005." Defendant's Evid. Hr'g Ex. 1; see also January 10, 2008 Evid. Hr'g Tr. at 35-50; Declaration of Arthur L. Kuhn, Inspector, United States Secret Service, Attachment 1 (Document No. 498, Exhibit 15); Notice of Errata Regarding Attachments to Kuhn Declaration (Document No. 518). Inspector Kuhn testified that his assignment included facilitating the inquiry, receiving any paper documents forwarded by employees in response to the e-mail, and collecting the certifications. January 10, 2008 Evid. Hr'g Tr. at 46, 53, 114. Following this effort, Defendant produced nine pages of responsive documents. See Declaration of Arthur L. Kuhn Inspector United States Secret Service (Document No. 498, Ex. 15).

Defendant employed a similar e-mail inquiry following the court's December 21, 2007 Order. On December 26, 2007, the Secret Service's Office of the Chief Counsel forwarded an e-mail to "all Assistant Directors [ADs], Special Agents in Charge [SAICs], Resident Agents in Charge [RAICs], and Division Chiefs" directing a search "of their offices, including all personal and office files, for any paper documents related to decision-making or recommendations for bids of selections to any GS-14, GS-15, or SES Special Agent position from 1991 to 2005." Defendant's Evid. Hr'g Ex. 14 at 1; see also February 1, 2008 Evid. Hr'g Tr. (Document No. 557) at 15. Defendant transmitted the December, 2007 e-mail to 156 Secret Service employees, and required that their search efforts be completed by January 4, 2008. Defendant's Evid. Hr'g Ex. 14 at 1; see also February 1, 2008 Evid. Hr'g Tr. at 74.

United States Secret Service Inspector Carrie Hunnicutt--called as a witness by both parties--testified during a span of six court dates regarding her January 2, 2008 assignment to (1) receive paper documents responsive to the inquiry; (2) collect faxed "certification forms" from each e-mail recipient affirming that a search was performed*fn11 and (3) to "contact [the December 26, 2007 e-mail recipients] . . . and just learn from them how I could understand how it was that they were able to thoroughly search their offices." See February 1, 2008 Evid. Hr'g Tr. at 12 -77; see also February 11, 2008 Evid. Hr'g Tr. (Document No. 559) at 20. Inspector Hunnicutt was also designated in the December 26, 2007 e-mail as a contact person should any of the recipients have questions regarding the e-mail or the required search.

Inspector Hunnicutt testified that she surveyed all 156 e-mail recipients, between January 4 and January 9, 2008, "to learn how . . . the certification forms were [completed][,]" and that during each interview, she recorded each individual's responses to her questions about the search on questionnaire forms which she created and maintained. See February 1, 2008 Evid. Hr'g Tr. at 76-77; see also February 5, 2008 Evid. Hr'g Tr. (Document No. 540) at 43-44, 56, 89; February 20, 2008 Evid. Hr'g Tr. (Document No. 561) at 14. Inspector Hunnicutt testified that she asked each recipient a series of questions to determine where they searched for responsive documents. See February 5, 2008 Evid. Hr'g Tr. at 45-50. She acknowledged that as she conducted her interviews, she learned that several of the recipients of the December 26, e-mail did not search all areas in their offices where records are stored; she testified that she designated these instances with an "N" on her questionnaire forms, but that she never instructed those recipients to conduct a further search. See February 11, 2008 Evid. Hr'g Tr. at 33-34 ("I marked an 'N' to say that no, they had answered that they had not searched that location, or I marked 'NA' to say that they had not searched that location because that was not applicable to their particular office.").

Inspector Hunnicutt also testified that she maintained a binder with the certification forms which were transmitted to her, as well as the questionnaires she completed as part of her interviews of the e-mail recipients, "so that it could be put into a statistical format . . . a snapshot . . . of what the search entailed." February 20, 2008 Evid. Hr'g Tr. at 9. She stated that she gave the binder to Jessica Neff of the Secret Service's Chief Counsel's Office on January 9, 2008. February 12, 2008 Evid. Hr'g Tr. (Document No. 560) at 40. However, it was not until Defendant's case-in-chief, and Inspector Hunnicutt's fifth court appearance, that the Inspector testified that on January 7, 2008, the statistician assigned to assist Inspector Hunnicutt informed her that her interview questionnaire forms were "misnumbered"; on January 9 and January 30, 2008, she "transferred" the recorded responses from each previously completed "misnumbered" questionnaire form "exactly" to a "correctly numbered" questionnaire form; on January 30, 2008, once she "believed that the information had been transferred," she "destroyed" the "misnumbered" questionnaires by "plac[ing] them into a burn bag." February 20, 2008 Evid. Hr'g Tr. at 30 - 35.*fn12 Inspector Hunnicutt later admitted during cross-examination by Plaintiffs' counsel that she modified some of the responses originally captured on the original questionnaire when she "transferred" information to the revised questionnaire form. See id. at 108; compare with id. at 66.

Inspector Hunnicutt further testified that there were no responsive paper documents found through the efforts required by the December 26, 2007 e-mail. February 1, 2008 Evid. Hr'g Tr. at 77; see also Plaintiffs' Evid. Hr'g Ex. 10 (January 7, 2008 Letter from counsel for Defendant to Jennifer Klar).

In addition to the testimony of Inspectors Kuhn and Hunnicutt, Defendant offered the testimony of six individuals who purportedly conducted these searches in their respective field offices in November and December, 2007, or January, 2008.*fn13 The individuals testified regarding their efforts, or the lack thereof, to search for "notes, letters, memoranda, emails . . . or any other paper documents that specifically relate[d] to the 'selection decisions' for GS-14 and GS-15 promotions and reassignments from 1991 to 2005." Document No. 498, Ex. 15, Attachment 1.

(3) The Parties' Closing Arguments

On May 29, 2008, during closing arguments, the parties largely reiterated the arguments advanced in their written submissions, including their respective statements of Proposed Findings of Fact and Conclusions of Law. See May 29, ...


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