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Moore v. Napolitano

July 15, 2010


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


Plaintiffs, 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 against the Secretary of the Department of Homeland Security. The defendant objects to the magistrate judge's imposition of sanctions that were imposed under Federal Rule of Civil Procedure 37 after the magistrate judge granted a motion to compel a reasonable search for paper documents responsive to the plaintiffs' document requests and after the defendant violated the compulsion order. The defendant has not shown that the magistrate judge erred in imposing sanctions under Rule 37 for the defendant's discovery violation or violation of the order. The preclusion sanction, though, will be construed to preclude the defendant from offering any legitimate, nondiscriminatory reason for a nonpromotion in response to any prima facie case of disparate treatment discrimination against the individual named plaintiffs, but not otherwise preclude the defendant from defending the case.


On October 29, 2007, after the defendant's Rule 30(b)(6) designee testified that the Secret Service had not searched the records of any decisionmaker in response to the plaintiffs' discovery requests served over a year earlier, the plaintiffs filed a motion for sanctions and to compel the defendant to comply with her discovery obligation "to conduct a reasonable search for and to produce all documents responsive to [the plaintiffs'] 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.'" Moore v. Chertoff, 255 F.R.D. 10, 13 (D.D.C. 2008) (quoting Pls.' Mot. to Compel a Reasonable Search ("Pls.' Mot. to Compel") at 1-2, 15-18). The document requests at issue included a request by the plaintiffs served on May 23, 2006 seeking "[a]ll documents,... whether stored electronically or in hard copy, that contain information on the selection of" Special Agents for promotion to the relevant positions. (Pls.' Mot. to Compel at 3.) Plaintiffs also served on June 15, 2006 a document request, seeking all documents related "to the bid and selection process for each competitive promotion" sought by the individual named plaintiffs and all documents "provided to or reviewed by individuals who" made the promotions decisions for each position for which the individual named plaintiffs applied. (See id. at 4 ¶¶ 5, 8.) The plaintiffs also sought a preclusion sanction that would prevent the defendant from defending against the plaintiffs' individual and class action prima facie cases of discriminatory nonpromotion. (See id. at 20.) On December 21, 2007, the magistrate judge granted the plaintiffs' motion to compel the defendant to conduct a reasonable search for responsive paper documents, ordered production of the documents by January 7, 2008, and ordered the defendant as a partial sanction to pay the plaintiffs' costs, including reasonable attorneys' fees, of moving to compel such discovery. She vowed a further hearing for the purpose of determining any additional appropriate sanction for the defendant's discovery violation. Moore, 255 F.R.D. at 14. The magistrate judge held an evidentiary hearing at which, though, the plaintiffs also vowed "to 'demonstrate through live testimony... the egregiousness of [the] Defendant's violation" and that the plaintiffs never received the responsive documents, and the defendant also vowed to show "absolute compliance" with the December 21, 2007 order. Id. at 16. (See also Def.'s Proposed Findings of Fact [Docket #571] at 2 (acknowledging that defendant's compliance with the December 21, 2007 compulsion order would in part be at issue in the hearing).) The docket reflects that the parties presented evidence for sixteen days from January 10 though April 14 of 2008 and closing arguments at the end of May. Based on the entire record, Moore, 255 F.R.D. at 13, including the evidence introduced at the hearing, the magistrate judge found that even one year after the order granting the motion to compel was issued, the defendant had still not complied, id. at 33, and the defendant's failure to conduct a reasonable search for and to produce all responsive documents was willful given the defendant's behavior throughout discovery. Id. at 35-36. Invoking her authority to issue "just orders," id. at 36, under Rule 37(b)(2) when a party "fails to obey an order to provide... discovery," the magistrate judge sanctioned the defendant by ordering that "once Plaintiffs have established a prima facie case of discriminatory non-promotion, Defendant may not defend any such prima facie case[.]" Id. at 37. The magistrate judge also ordered "pursuant to Rule 37... [that the] Defendant shall pay Plaintiffs their costs, including reasonable attorneys' fees, of drafting, filing, and litigating the Motion [to Compel and] for Sanctions." Id.

The defendant has filed objections to the magistrate judge's ruling, arguing that the magistrate judge erred because the defendant complied with the order compelling her to conduct a reasonable search, and because the magistrate judge's order imposed "a severe sanction precluding [the] defendant from being able to thoroughly defend the merits of this case." (Def.'s Obj'ns at 1.) In addition, the defendant objects to the magistrate judge's order awarding costs to the plaintiffs, alleging that no cost sanction is appropriate under Rule 37(b)(2)(C) because the defendant complied with the court's order, and that the defendant had already paid for plaintiffs' costs incurred in filing their motion. (Id. at 44.)


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 quotation marks 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 under this Rule found to be clearly erroneous or contrary to law.").


The defendant contends that the magistrate judge erred in issuing a sanction under Rule 37(b)(2) because the plaintiffs requested the sanction before the magistrate judge issued her December 21, 2007 order granting the plaintiffs' motion to compel, and because the magistrate judge's sanction opinion makes no finding that the defendant violated her December 21, 2007 order. (Def.'s Obj'ns at 29-31.)

The timing of a party's request for sanctions does not determine a court's authority to issue them. The federal rules, for the most part, do. Plaintiffs complained in a motion to compel that the defendant had not searched for and produced documents. The magistrate judge agreed, granted the motion to compel, and pending a further hearing to determine what if any additional sanctions were warranted, preliminarily assessed costs against the defendant, as the magistrate judge was authorized to do. Fed. R. Civ. P. 37(a)(5). The defendant makes no argument or showing that the magistrate judge lacked such authority.

For months thereafter, the magistrate judge held a hearing with a dual focus on additional sanctions for defendant's discovery violation found at the December 21, 2007 hearing, and defendant's compliance with the compulsion order issued that day. The defendant neither argues nor demonstrates that the magistrate judge lacked continuing authority under Rule 37(a)(5) to consider whether sanctions beyond the sanction preliminarily issued for the initial discovery violation were warranted.

The magistrate judge had authority to issue sanctions for violation of the compulsion order. "A district court may order sanctions, including a default judgment, for misconduct either pursuant to Rule 37(b)(2)*fn1..., which authorizes a court to assess a sanction for violation of a discovery order, or pursuant to the court's inherent power to 'protect [its] integrity and prevent abuses of the judicial process.'" Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (quoting Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995)) (alteration in original).

Contrary to the defendant's assertion, the magistrate did find that the defendant violated the December 21, 2007 order requiring the defendant to search for and produce by January 7, 2008 documents that were the subject of the motion. The magistrate judge expressly concluded that the defendant "fail[ed] to timely" or reasonably "search for and serve the documents responsive to Plaintiffs' requests for production of documents... in accordance with... the court's order compelling discovery[.]" Moore, 255 F.R.D. at 33. Similarly, the magistrate judge concluded that the defendant "made a mockery of... the order granting Plaintiffs' motion to compel[.]" Id. at 35. Given the dual focus of the hearing, the finding that the defendant failed to comply with the compulsion order required that the magistrate judge "order the disobedient party... to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C). As is discussed below, the defendant has not shown error in the finding that she failed to comply with the compulsion order, or shown that her failure to comply was substantially justified. Nor has she shown that the award of costs was unjust. That the defendant may already have paid the costs imposed on December 21, 2007 simply means that the defendant would not be required to pay again any portion of the total costs imposed in the 2008 order that has already been paid. Accordingly, the defendant has not shown that the magistrate judge lacked authority under Rule 37 to sanction the defendant for her discovery violation and for failing to comply with the discovery order.

The magistrate judge has presided over proceedings involving discovery disputes in this case since 2005. She has found the defendant's behavior regarding discovery obligations consistently over time to range from being lackluster to being recalcitrant and obdurate. Moore, 255 F.R.D. at 12, 26, 35. She found that the case was delayed "in large measure by the Defendant's failure to provide discovery without the virtually continuous intervention of the court." Id. at 33. The enforcement record is not disputed. The magistrate judge has had to enter against the defendant no fewer than nine orders compelling the defendant to provide discovery. Id. at 12. She has denied a protective order sought by the defendant to limit discovery. Id. The question here is whether, in light of this history, she had a basis for concluding that the defendant's recent search efforts for decisionmakers' documents were not reasonable, and the defendant's conduct was willful so as to warrant a severe sanction.


The defendant alleges that the magistrate judge erred in finding that the defendant failed to conduct reasonable searches for responsive decisionmaker documents. As a preliminary matter, the defendant alleges that the magistrate judge erroneously placed the burden of proof on the defendant, relying on the heading in the magistrate judge's opinion stating that the "[d]efendant failed to adduce credible evidence of any reasonable search efforts in November and December, 2007 and January, 2008" as evidence that the burden of proof had shifted. (Def.'s Obj'ns at 27.) Contrary to the defendant's objection, viewing the magistrate judge's opinion in its entirety, the magistrate judge did not erroneously place the burden of proof on the defendant. When a plaintiff alleges that a defendant violated a discovery order compelling a search by failing to conduct an adequate search, a plaintiff invariably will call upon the defendant's agents to explain what efforts were or were not made to comply with the court's discovery order to show that such efforts were deficient. Once a plaintiff uncovers such evidence that the defendant failed to search in particular locations or that individual searches conducted by the defendant's agents were inconsistent, it necessarily falls to the defendant, the party with superior knowledge of its own records, to show the reasonableness of its decisions regarding where and how to search for responsive documents.

Here, the magistrate judge carefully considered all of the evidence presented by both parties to determine whether the plaintiffs had carried their burden, as the moving party, to justify imposing a sanction. If anything, the language of the heading identified by the defendant as significant ---"[d]efendant failed to adduce credible evidence of any reasonable search efforts" -- and the findings within that section of the magistrate judge's opinion suggest that the defendant's presentation of evidence in its defense actually bolstered the plaintiffs' case for sanctions. They do not establish that the magistrate judge improperly placed the burden of proof on the defendant.

The defendant also contends that the magistrate judge did not assess the defendant's search efforts under the correct legal standard, namely, reasonableness. (Def.'s Obj'ns at 27.) Under Rule 26, a party is obligated to make a reasonable effort to search for and produce documents responsive to the opposing party's document requests. See Fed. R. Civ. P. 26(g) Advisory Comm. Notes (1983 Amendment). "Ultimately, what is reasonable is a matter for the court to decide on the totality of the circumstances[,]" and "[t]his standard is heavily dependent on the circumstances of each case." Id. The magistrate judge's opinion applies this reasonableness standard, explicitly finding that the defendant "failed to conduct a reasonable search in 2006" and similarly did not demonstrate "any reasonable search efforts in November and December, 2007 and January, 2008." Moore, 255 F.R.D. at 21-22. The defendant identifies no misstatement of the reasonableness standard and instead points to particular factual findings as evidence that the magistrate judge applied a more stringent standard than reasonableness.

A. 2006 Search

The magistrate judge found that the defendant had limited the search for responsive documents to only three Secret Service divisions -- Personnel, EEO, and Management and Organization ---and had not "searched the records of any decision-maker" stored outside of these divisions prior to the December 21, 2007 order. (Id. at 21.) As the magistrate judge noted, the defendant acknowledged that it "could have gone to the individual supervisors... within the Secret Service and queried them personally about what recommendation materials they may have [had] that would [have been] responsive to the Plaintiffs' request." (Id. (quoting May 29, 2008 Hrg. Tr. at 32) (internal quotation marks and alterations omitted).) The defendant ...

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