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Moore v. Napolitano

August 7, 2009

REGINALD MOORE, ET AL., PLAINTIFFS,
v.
JANET NAPOLITANO, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs, current and former African-American 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 against the Secretary of the Department of Homeland Security. The defendant objects to two of the magistrate judge's discovery orders -- one sanctioning the defendant for failing to fully respond to one of the plaintiffs' interrogatories by a court-ordered deadline, and one granting the plaintiffs' motion to compel electronic searches and sanctioning the defendant by awarding plaintiffs the costs of the motion. Because the orders reflect no error, but the defendant has shown reason to modify two sanctions issued by the magistrate judge, the defendant's objections to her rulings will be overruled except as to the dates from which the preclusion and payment sanctions are measured.

BACKGROUND

The defendant has filed objections to two rulings issued by the magistrate judge: (1) an April 26, 2007 sanction order precluding the defendant from introducing into evidence at any stage, any information responsive to one of plaintiffs' interrogatories that was not provided to the plaintiffs by January 30, 2007, and (2) a September 13, 2007 order granting the plaintiffs' motion to compel the defendant to search for and produce responsive e-mails and other electronically stored documents (collectively referred to only as "electronic documents").

DISCUSSION

Federal Rule of Civil Procedure 72(a) and Local Civil Rule 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed." Moore v. Chertoff, 577 F. Supp. 2d 165, 167 (D.D.C. 2008) (internal quotations and citations omitted); see also Graham v. Mukasey, 247 F.R.D. 205, 207 (D.D.C. 2008); LCvR 72.2(c) ("Upon consideration of objections filed . . . , a district judge may modify or set aside any portion of a magistrate judge's order 3 under this Rule found to be clearly erroneous or contrary to law.").

I. SANCTION PRECLUDING USE OF INFORMATION RESPONSIVE TO INTERROGATORY 4(c)

On December 14, 2006, the magistrate judge granted the plaintiffs' motion to compel and ordered the defendant to fully respond to plaintiffs' Interrogatory 4(c) by January 19, 2007.*fn1

On February 1, 2007, the plaintiffs filed a motion to sanction the defendant under Rule 37(b)(2)(B) for violating the court's December 14 order, arguing that the defendant had failed to fully respond to Interrogatory 4(c) by the court-ordered deadline and unilaterally determined that it would continue to produce documents on a rolling basis without seeking compromise from the plaintiffs or relief from the court. (See Pls.' Mot. for Sanction of Def. for Failure to Comply with Ct. Order ("Pls.' Sanction Mot.") at 2.) In an April 26, 2007 bench ruling, the magistrate judge granted the plaintiffs' motion for a sanction and precluded the defendant from introducing "as evidence, for whatever purpose and at any stage of discovery or at trial, . .. 4 any information that is responsive to Interrogatory 4(c) that was not provided to [the] Plaintiffs on or before January 30, 2007." (Pls.' Sanction Mot. at 3.)

The defendant has filed objections to the magistrate judge's sanction order on several grounds. She contends that the magistrate judge erred in issuing a "severe" preclusionary sanction when the defendant had made substantial efforts to comply with the January 19 deadline, and claims that she was permitted to withhold certain documents that were the subject of her motion for reconsideration of the magistrate judge's order granting the plaintiffs' motion to compel. (See Def.'s Obj'ns to Sanction Order at 12, 17-18, 20; Defs.' Reply in Support of Objn's to Sanction Order at 11-12.) These arguments lack merit. Absent a court order staying enforcement of a magistrate judge's discovery order, a party must comply with the magistrate judge's order, even if the order is subject to review by the district court. Cf. Ilan-Gat Eng'rs, Ltd. v. Antigua Int'l Bank, 659 F.2d 234, 239 (D.C. Cir. 1981) (concluding that a magistrate judge may sanction a party who does not comply with a discovery order regardless of any challenge to the court's subject matter jurisdiction over the complaint). A party is not free to unilaterally alter the method of compliance mandated by such an order. A preclusion sanction issued for failure to comply with a discovery production deadline set in a magistrate judge's order 5 far from being severe is a wholly unexceptional remedy that is contemplated in the federal rules. See Fed. R. Civ. P. 37(b)(2)(A)(ii), (d)(3).

The defendant also argues that the magistrate judge erred in sanctioning the defendant on April 26 for failing to produce documents that the district court on May 8 gave the defendant an additional thirty days to produce. A magistrate judge cannot err in April by ruling in a way that differs from a district court order yet to be issued in May. Nevertheless, because the May 8 order later extended the defendant's deadline to produce documents responsive to Interrogatory 4(c) from January 19, 2007 to thirty days from the May 8 order denying the defendant's motion for reconsideration, the magistrate judge's sanction order will be modified to preclude the introduction into evidence of any documents responsive to Interrogatory 4(c) that were not produced to the plaintiffs within thirty days after the May 8, 2007 order denying the defendant's motion for reconsideration. The remaining objections to the magistrate judge's sanction order will be overruled.

II. ORDER GRANTING THE PLAINTIFFS' MOTION TO COMPEL

Three months after the close of discovery, the plaintiffs filed a motion to compel [the defendant] to satisfy [her] discovery obligation to search and produce responsive e-mails and electronic documents, and to do so pursuant to a transparent process approved by the Court that includes, but is not limited to, identifying where Defendant must conduct this search, whose e-mails and electronic documents must be searched, and what search terms should be employed to conduct these searches. (Pls.' Mot. to Compel Def. to Comply with [Her] Discovery Obligation to Search & Produce Responsive E-mails and Electronic Documents ("Pls.' Mot. to Compel") at 4.) The plaintiffs alleged that throughout discovery, the defendant lodged boilerplate objections to the plaintiffs' document requests, but then continued to produce documents responsive to many of the plaintiffs' requests. The plaintiffs further alleged that while the defendant was producing responses, she did not inform the plaintiffs that she was not producing all documents responsive to the plaintiffs' requests or that she was unilaterally limiting her search efforts, including by not searching for electronic documents. After receiving a letter from the defendant dated June 5, 2007, in which the defendant explained what limited efforts it had made to search for responsive electronic documents for some of the plaintiffs' document requests, the plaintiffs filed their motion to compel the defendant's compliance with her discovery obligations under Rules 26 and 34.

After a hearing on the motion, the magistrate judge granted the plaintiffs' motion to compel and ordered the defendant "to do what the Federal Rules of Civil Procedure already require in no uncertain terms, and that is to search for the responsive ...


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