United States District Court, District of Columbia
SAUNDRA M. MCNAIR, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
Mehta, United States District Judge
matter is before the court on Defendant District of
Columbia's Motion for Sanctions. See Def.'s
Mot. for Sanctions & Def.'s Mem. in Supp. of Mot.,
ECF No. 52 [hereinafter Def.'s Mem.]. The grounds for
Defendant's Motion are not disputed by Plaintiff Saundra
M. McNair: Plaintiff admits that she failed to provide
answers to two key interrogatories asking her to identify
fact and expert witnesses, and, further, that she produced no
documents to Defendant during the discovery period, even
though Defendant made a timely demand for records.
Id. at 1-8; see also Pl.'s Resp. in
Opp'n, ECF No. 53, Mem. in Support, ECF No. 53-1
[hereinafter Pl.'s Mem.], at 3, 5 (responding only that
sanctions are inappropriate because Defendant fails to show
prejudice). Defendant seeks an array of sanctions, all of
which have in common precluding Plaintiff from relying on any
evidence, including witness testimony, which Plaintiff did
not disclose during discovery. Def.'s Mem. at 8-12.
of the Federal Rules of Civil Procedure provides the
applicable sanctions framework. Under Rule 37(b)(2)(A), the
court may impose sanctions against a party that “fails
to obey an order to provide or permit discovery, ”
including a scheduling order issued under Rule 26(f). The
sanctions authorized by Rule 37, in order of severity, range
from “directing that . . . designated facts be taken as
established for the purposes of the action” to
“rendering a default judgment against the disobedient
party.” See Fed. R. Civ. 37(b)(2)(A)(i)-(vii).
Additionally, Rule 37(c)(1) provides that, “[i]f 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.” Fed.R.Civ.P.
central requirement of any Rule 37 sanction is that it be
“just.” Bonds v. District of Columbia,
93 F.3d 801, 808 (D.C. Cir. 1996). Thus, Rule 37 is bounded
by the “‘concept of proportionality' between
offense and sanction.” Id. (internal citation
omitted). When deciding whether to impose the kind of
“severe” sanction requested here-the broad
preclusion of evidence-a court may consider “the
resulting prejudice to the other party, any prejudice to the
judicial system, and the need to deter similar misconduct in
the future.” Id. In addition to these three
factors, the court must consider the availability of less
drastic sanctions. See Id. at 809.
seeks to avoid sanctions on the ground that she previously
produced the requested responses and records to Defendant.
See Pl.'s Mem. at 3. She states that she intends
to rely upon the same records-more than 120 pages worth-that
she submitted in connection with administrative proceedings
before the D.C. Department of Employment Services, which
preceded this action. Pl.'s Mem. at 3-4. Thus, she claims
the “information Defendant is seeking is currently in
Defendant's custody and has been for a substantial amount
of time.” Id. at 3. Therefore, she maintains,
Defendant has not been prejudiced by her non-responsiveness
during the discovery period. See Id. 3-4.
defense is no defense at all. “[A] party ordinarily
cannot refuse to produce documents within its possession,
custody, or control on the grounds that the materials may
already be in the requesting party's possession.”
Fed.R.Civ.P. 34 rules and commentary to February 2018 update;
see also P.R. Med. Emergency Grp., Inc. v. Iglesia
Episcopal Puertorriquena, Inc., 318 F.R.D. 224, 230 (D.
P.R. 2016) (“Courts have held that a responding party
is required to produce documents in its possession, custody,
or control regardless of whether the requesting party is
already in possession of the requested documents.”)
(citing cases); cf. Thong v. Andre Chreky Salon, 247
F.R.D. 193, 197-98 (D.D.C. 2008) (holding that the fact the
requesting party can obtain records from another source does
not relieve a party from producing those records in its
possession, custody, or control). Plaintiff offers no reason
to deviate from that general rule here. Therefore,
Plaintiff's failure to answer interrogatories and produce
records warrants sanction under Rule 37.
determined that sanctions are appropriate, the question
remains what sanctions would be “just.”
Defendant's proposed sanctions-the blanket exclusion of
all undisclosed documents and testimony-effectively would
preclude Plaintiff from making her case. Accordingly, the
court must consider the three factors set forth in
Bonds and the availability of alternative sanctions.
See Bonds, 93 F.3d at 808.
three Bonds factors weigh in favor of a meaningful
sanction. First, there can be little doubt that Defendant is
likely to suffer prejudice from Plaintiff's use of
documentary evidence that it did not already have in its
possession, custody, or control. Defendant will not, for
instance, have had use of such records to depose witnesses
(although Defendant only noticed Plaintiff's deposition).
The same is true of witnesses not known to Defendant. If
Plaintiff relies upon testimony of a witness about whom
Defendant has received no notice, prejudice is likely. As to
the second factor, however, the prejudice to the court here
is limited. Plaintiff's lack of diligence has not, for
instance, affected a trial date or the court's docket.
Cf. id. at 810. Third, a sanction that has teeth is
warranted to deter future misconduct. As is clear from the
parties' correspondence, as described in Defendant's
Motion, Plaintiff's counsel strung along Defendant's
counsel for months on end, promising to answer
interrogatories and produce records, and then ultimately
provided incomplete interrogatory answers and no records.
See Def.'s Mem. at 1-6. Such brazen disregard of
discovery obligations is unacceptable and warrants a
consequential penalty to deter such behavior from recurring.
that said, Defendant is not free of fault. At no time during
the discovery period did Defendant bring Plaintiff's
non-responsiveness to the court's attention. The
court's scheduling order made clear that discovery
disputes could be brought to the court's attention by
notifying chambers. See Order, ECF No. 47.
Defendant, however, did not raise Plaintiff's failure to
produce discovery until the Post-Discovery