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Smith v. Ergo Solutions, LLC

United States District Court, District of Columbia

November 6, 2018

TWILA SMITH, et al., Plaintiffs,
ERGO SOLUTIONS, LLC, et al. Defendants.



         Plaintiffs Twila Smith and Deirdra Gilliam Osborne filed this action against their former employer, defendant Ergo Solutions, LLC (“Ergo”), and one of Ergo's managing partners, defendant George Brownlee, alleging sexual harassment. A discovery dispute erupted, and plaintiffs filed a motion to compel discovery, which the Court resolved following a hearing and a round of supplemental briefing. Plaintiffs now move for sanctions in the form of attorney's fees and costs under Federal Rule of Civil Procedure 37.[1] Plaintiffs also seek costs and fees for litigating this motion for sanctions. For the reasons that follow, plaintiffs' motion for sanctions will be denied.


         Plaintiffs move for sanctions in the form of attorney's fees and costs related to litigating their motion to compel, drafting supplemental briefs ordered by the Court following the motion to compel, and preparing this motion for sanctions.

         In October 2016, Smith and Osbourne filed their motion to compel, arguing that defendants had failed to provide proper documents in response to thirteen requests for production (“RFPs”) and had failed to respond adequately to eight interrogatories. Br. in Supp. of Pl.'s Mot. to Compel (“Mot. to Compel I”) [ECF No. 64-1] at 8-25. Plaintiffs also argued that defendants had failed to designate a Rule 30(b)(6) witness competent to testify on the areas of examination identified in plaintiffs' Rule 30(b)(6) Notice. Id. at 25. This Court held a hearing on the motion to compel in February 2017, discussing each alleged deficiency in turn, and issued an order the same day. See Mot. Hr'g Tr. Feb. 13, 2017 (“Hr'g Tr.”) [ECF No. 70]; Order, Feb. 13, 2017 (“Feb. 13 Order”) [ECF No. 69].

         Of the twenty-two issues raised in the motion to compel, the largest proportion involved technological-not legal-discovery issues; plaintiffs were unable to open electronic documents sent through defendants' file-sharing service. The Court characterized the dispute about problems opening these files as “just craziness” and “not something that counsel should have to involve the Court in.” Hr'g Tr. at 6:8-9. The Court ordered the parties to work out among themselves the exchange of documents and for defendants to supplement their responses to the RFPs related to these sets of documents as appropriate. Feb. 13 Order ¶¶ 1-2. The Court also ordered that defendants “provide . . . documents in another accessible format” if plaintiffs were unable to access the documents in an electronic format. Id. ¶ 1.

         As to the remaining issues in dispute, the Court granted in part and denied in part plaintiffs' motion. Some issues were clearly resolved in plaintiffs' favor. The Court ordered defendants to produce Brownlee's personnel file and resume, to the extent one existed, in response to two of plaintiffs' RFPs. Hr'g Tr. at 19:8-19. The Court also ordered defendants to identify an appropriate Rule 30(b)(6) designee for an additional deposition, id. at 37:10-18; and required defendants to check most of the challenged answers to interrogatories and to supplement their responses as appropriate, see, e.g., id. at 27:13-14; 29:20-30:2; 30:19-20. But the Court denied plaintiffs' request for production of Brownlee's medical records because there was no evidence these records were “sufficiently relevant . . . in a context where there are both privacy and privilege concerns that apply with respect to an individual's medical records.” Id. at 21:24-22:2, 24:17-22.

         Only one legal issue remained unresolved after the hearing on the motion to compel. Plaintiffs sought production of an internal investigation report[2] conducted in response to allegations of sexual harassment brought against Brownlee at Ergo. Defendants asserted attorney-client privilege. Feb. 13 Order ¶ 4. The Court ordered that the parties submit supplemental briefs on the privilege issue and that defendants provide a copy of the report for in camera review. Id.

         A month after the Court's order, the parties submitted a joint status report stating that, aside from the unresolved issue of whether the internal investigation report would be disclosed (and ongoing difficulty identifying a suitable Rule 30(b)(6) witness), “[a]ll other discovery” was complete. Joint Status Report [ECF No. 76] ¶ 3. The parties agreed on a Rule 30(b)(6) witness a few weeks later. See Status Report on 30(b)(6) Witness [ECF No. 79] at 1. The Court next turned to the issue of whether the internal investigation report should be produced. After considering the parties' supplemental briefs, the Court determined that privilege applied to the document but that Brownlee had waived the privilege when he discussed the report in his deposition. Smith, 2017 WL 2656096 at *3-*4.

         Plaintiffs moved for Rule 37 sanctions in the form of attorney's fees and costs. Mem. of P. & A. in Supp. of Mot. for Disc. Sanctions (“Mot. for Sanctions”) [ECF. No. 82-1] at 2-3. Plaintiffs claim they are “entitled to attorney['s] fees and cost[s] for the motion to compel answer[s] to [plaintiffs'] discovery request[s] as well as production of the internal investigation report and the motion for sanctions” pursuant to Rule 37(a)(5), which permits a court to award attorney's fees and costs to a party prevailing on a motion to compel discovery. Id. at 6. More specifically, plaintiffs argue that they prevailed because the Court ordered defendants to supplement their responses to plaintiffs' interrogatories and RFPs, to produce Brownlee's personnel file, and to allow the deposition of an additional Rule 30(b)(6) witness. Mot. for Sanctions Reply to Opp'n of Def. Ergo Solutions (“Pls.' Reply”) [ECF No. 96] at 4-5, 13-14. Plaintiffs also argue that they are entitled to attorney's fees and costs because the Court ultimately ordered that the internal investigation report be disclosed. Plaintiffs conclude that defendants' actions in withholding the report were not justified, that defendants “simply didn't review the documents and provide documents Plaintiff's [sic] had a reasonable right to request, ” and that accordingly they “should be made to pay for their representation sloppiness.” Id. at 16.

         Defendants respond that their objections to plaintiffs' discovery requests and interrogatories were “substantially justified” and therefore not subject to sanctions under Rule 37(a). Mem. of P. & A. in Opp'n to Mot. for Sanctions (“Defs.' Opp'n”) [ECF. No. 84-1] at 7. Defendants argue that all objections were “supported by the law” and that defendants “produced everything they had within their possession at the time.” Id. at 12. Furthermore, they note that “the Court decided in favor of Defendants regarding [plaintiffs' request for Brownlee's medical records].” Id. at 11. Defendants also contend that plaintiffs “did not meet their burden” with respect to their challenges to defendants' responses “because they gave no reasoning other than . . . ‘Defendant's answer totally non-responsive.'” Id. at 12. Defendants characterize this response as “cast[ing] doubt on whether or not they attempted to resolve these issues in good faith before filing their motion to compel, ” as Rule 37(a) requires. Id. With respect to the dispute over the internal investigation report, defendants note that the Court agreed with defendants on two substantive points: the internal investigation report was protected from disclosure by attorney-client privilege and Ergo's human resources director had not waived the privilege. Id. at 8-9. Plaintiffs first raised the argument on which they ultimately prevailed-that Brownlee had waived the privilege-in their reply brief, months after moving to compel production of the document.[3]Defs.' Opp'n at 9. Thus, defendants argue that they never had an opportunity to consider plaintiffs' prevailing theory for disclosure before involving the Court in the dispute, and Rule 37(a) sanctions should not be applied. Id.


         “District court judges enjoy wide discretion in managing the discovery process.” 3E Mobile, LLC v. Global Cellular, Inc., 222 F.Supp.3d 50, 53 (D.D.C. 2016) (alteration omitted) (quoting Shatsky v. Syrian Arab Republic, 312 F.R.D. 219, 223 (D.D.C. 2015)). When this discovery process is abused, courts are permitted under Federal Rule of Civil Procedure 37 to award sanctions.

         Rule 37(a) describes procedures by which a party may move to compel disclosure or discovery and describes when a court should award attorney's fees and costs to the party who prevails on such a motion. See Fed.R.Civ.P. 37(a). If a motion to compel is granted, “the court must . . . require the party . . . whose conduct necessitated the motion . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless the movant filed the motion without first “attempting in good faith to obtain” the materials, “the opposing party's nondisclosure, response, or objection was substantially justified, ” or sanctions would be unjust. Fed.R.Civ.P. 37(a)(5)(A). A party's actions are “substantially justified” when “there is a ‘genuine dispute' or ‘if reasonable people could differ as to the appropriateness of the contested action.'” Parsi v. Daioleslam, 778 F.3d 116, 127 (D.C. Cir. 2015) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “On many occasions, to be sure, the dispute over discovery ...

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