United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
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. Plaintiffs also seek costs and fees for
litigating this motion for sanctions. For the reasons that
follow, plaintiffs' motion for sanctions will be denied.
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.
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].
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.
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.
one legal issue remained unresolved after the hearing on the
motion to compel. Plaintiffs sought production of an internal
investigation report 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.
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
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.
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.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.
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.
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 ...