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McNair v. District of Columbia

United States District Court, District of Columbia

April 4, 2018

DISTRICT OF COLUMBIA, et al., Defendants.


          Amit P Mehta, United States District Judge


         This 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.


         Rule 37 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. 37(c)(1).

         The 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.


         Plaintiff 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.

         Plaintiff's 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.


         Having 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.

         The 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.

         All 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 ...

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