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awarding monetary sanctions against Defendant for discovery violations, including Defendant's alteration of documents produced to Plaintiff and "purposeful scheme to prevent [Plaintiff] from discovering documents that [Defendant] viewed as harmful to their defense of the case"
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Daniel W. Lee, La Grange, GA, David B. Byrne, III, Jere L. Beasley, Rhon E. Jones, Beasley Allen Crown Methvin Portis & Miles PC, Montgomery, AL, Edward Reed Jackson, James C. Brakefield, Tweedy, Jackson, Beech & Fikes, Jasper, AL, Jeffrey Edwin Friedman, Friedman Leak Dazzio Zulanas & Bowling, PC, Birmingham, AL, for Plaintiffs.
Anthony Ching, Rancho Cucamonga, CA, Clifford Carrington Brady, Brady Radcliff & Brown, LLP, Mobile, AL, Evan Mark Tager, Mayer Brown Rowe & Maw LLP, Washington, DC, H. Thomas Wells, Jr., Jarred O. Taylor, II, Maynard, Cooper & Gale, P.C., Birmingham, AL, J. Brett Busby, Mayer Brown Rowe & Maw LLP, Houston, TX, Peter Sean Fruin, Maynard Cooper & Gale, PC, Montgomery, AL, Sam E. Loftin, Loftin Loftin & Hall, Phenix City, AL, for Defendants.
ORDER
FULLER, Chief Judge.
On June 13, 2007, the United States Magistrate Judge entered a Recommendation (Doc. # 360) that sanctions be imposed against defendants because they withheld evidence during pretrial discovery in bad faith and in violation of prior orders of this Court. The Magistrate Judge found that because of defendants' discovery violations, the plaintiffs were prejudiced in their presentation of evidence to the jury and on appeal. On June 26, 2007, defendants filed Defendants' Objections to Magistrate Judge Capel's June 13, 2007,[sic] Report and Recommendation (Doc. # 361).
As an initial matter, the Court finds that the defendants' objections to the Recommendation of the Magistrate Judge are largely without merit and most of the objections are due to be overruled. Indeed, in nearly all respects, the Court is persuaded by the factual findings and the legal reasoning of the Magistrate Judge set forth in the Recommendation.
Accordingly, after an independent review of the entire file in this matter, it is the ORDER, JUDGMENT, and DECREE of the Court:
a. That the objections filed by defendants (Doc. # 361), are OVERRULED in part and SUSTAINED in part as set forth below;
b. To the extent that the Recommendation (Doc. # 360) includes punitive sanctions of $26,470 payable to the Court, the Recommendation is REJECTED and the defendants' objection to that portion of the Recommendation is SUSTAINED. In all other respects, the defendants' objections are OVERRULED and the Recommendation of the Magistrate Judge (Doc. # 360) is ACCEPTED and hereby ADOPTED as the opinion of this Court;
c. To the extent that plaintiffs' motions (Doc. # 293, Doc. # 308, and Doc. # 308-1) seek an award of monetary sanctions against defendants for their conduct during discovery, those motions are GRANTED. Consistent with the Recommendation of the Magistrate Judge (Doc. # 360), it is hereby ORDERED that sanctions are imposed against Continental Carbon Company, Inc. and China Synthetic Rubber Corporation, jointly and severally, in the amount of $120,945.59.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CAPEL, United States Magistrate Judge.
This cause is now before the Court on the Plaintiffs' (collectively, " the property owners" ) objections and motion to reconsider the magistrate judge's order denying sanctions (Doc. 346). The district court instructed the magistrate judge to consider " [a]ll issues relating to the appropriateness of monetary sanctions against defendants (collectively, ‘ Continental’ ) raised by plaintiffs' motions (Doc. 293, Doc. 308, Doc. 308-1) and all submissions in support of plaintiffs' requests for monetary sanctions as a penalty for alleged discovery violations" (Doc. 347).
" The property owners" include the City of Columbus, Georgia (" the City" ), Action Marine, Inc. (" Action Marine" ), a retail boat sales and maintenance business, John Tharpe (" Tharpe" ), sole owner of Action Marine, Owen Ditchfield (" Ditchfield" ), owner of a residence and rental home in the area. Ditchfield was added as a class representative, but the district court denied class certification. Ditchfield, however, remained in the case as a party plaintiff.
" Continental" includes Continental Carbon, Inc., (" CCC" ) and its parent corporation, China Synthetic Rubber Corporation (" CSRC" ). Summary Judgment was granted in favor of the additional defendants Taiwan Cement Corporation (" Taiwan" ), Barry Nicks (" Nicks" ) and Todd Miller (" Miller" ).
Doc. 293 is the brief in support of property owners' Motion to Supplement the Trial Court Record with Evidence Wrongfully Withheld by Defendants from Pretrial Discovery. Doc. 293-1 refers to 19 analytical charts provided by property owners, Charts A through S, which coincide with Exhibits A through S (" the PT documents" ) appended to the property owners' motion to supplement the trial court record (Doc. 293-1, Doc. 317). Doc. 308 is the property owners' Supplemental Motion for Sanctions and Submission Pursuant to Magistrate Judge McPherson's Order of September 9, 2005. Doc 308-1 is the property owners' Time Records for matter involving property owners' requests for sanctions.
Both parties have been given notice as to the discovery violations, have been given great latitude in their presentation of the issue of monetary sanctions, and have argued their positions at several evidentiary hearings held on January 19, 2005 (" Tr 1" ), August 18, 2005 (" Tr 2" ) ( sealed in part) and November 10, 2005 (Doc. 349), extending over a period of three days. In addition, this court has reviewed in detail all of the exhibits produced by both the property owners and Continental in response to this court's previous orders, taken into consideration Continental's assertions as to attorney-client privilege, and has taken judicial notice of the entire record for purposes of this motion. Thus, fully illuminated by the parties, and taking into consideration the briefs and arguments of the parties, recommendation is made to the district court.
Upon consideration of this matter, as further set forth herein, it is the recommendation of the magistrate judge that the motion for monetary sanctions be GRANTED.
I. BACKGROUND
The court will briefly review the history of this case to provide a sense of perspective before assessing the property owners' motion for reconsideration regarding monetary sanctions. Below is a discussion of the underlying dispute and the discovery battles that ensued for almost three-and-a-half years before this case was brought to trial.
A. Factual allegations
In August of 2001, the City, Action Marine and Tharpe brought a class action lawsuit for negligence, wanton conduct, breach of duty to warn, fraud, misrepresentation, deceit, nuisance, trespass, and strict liability. The property owners claimed that emissions from CCC's Phenix City, Alabama plant damaged their property and health. It was alleged that 200 million pounds of a substance known as " carbon black," and its associated waste gases, were emitted annually exposing surrounding residents to the toxins from the gases, and their property to dustings of the black and sticky carbon black substance. The City claimed damage to the Columbus Civic Center, the South Commons Sports and Entertainment Complex as well as Rigdon Park. Action Marine and Tharpe claimed damage to its inventory of boats and for the lost value of its business. Ditchfield sought damages for emotional distress, cleanup costs and for the diminution in value of his properties. In response, CCC claimed that no such pollutants were harmfully emitted from its plant to cause the property owners' damage. CSRC claimed that it did not exercise supervision and control over CCC, and as a result, were not directly liable to the property owners for any pollution from the plant.
Subsequently, the district court granted summary judgment dismissing the claims of fraud, misrepresentation, deceit and strict liability, as well as the City's and Action Marine's claims for emotional distress. Remaining were the claims of negligence, wanton conduct, nuisance and trespass.
Trial was held for ten days in August of 2004. The jury found Continental liable for nuisance, trespass, negligence, wanton and wilful conduct, and awarded compensatory damages in the amounts of $1.2 million to Action Marine, $570,000 to the City, $100,000 to Tharpe and $45,000 to Ditchfield. The jury also awarded $1,294,000 in attorneys fees and assessed punitive damages in the amount of $17.5 million. Final judgment was entered on January 31, 2005, and costs were taxed against Continental. The judgment was appealed, and the Eleventh Circuit Court of Appeals upheld the verdict.
Reserved to the court was the issue of injunctive relief ( See Doc. 226-7, 299).
Continental has expressed its intent to appeal to the Supreme Court. See website: http:// www. wtvm. com/ Global/ story. asp? S= 6592641.
B. Pertinent discovery history
Over the course of this hotly-contested litigation, requests for production of documents, interrogatories, requests for admissions, deposition requests and many court orders were generated in connection with fleshing out the pertinent facts associated with the allegations brought by the property owners in this case. The property owners in their brief, and at the three hearings, as well as in many motions, outlined in detail the pertinent discovery requests made, and Continental's response to those requests. In response to this court's request to docket the alleged documents wrongfully withheld, the magistrate judge directed the property owners to submit the 19 individualized analytical charts, labeled Charts A through Chart S (consisting of 285 typewritten pages), to assist in the review of the alleged pretrial discovery abuses (Doc. 316). These Charts (Doc. 317, collectively the " PT charts" ) coincide with the actual documents withheld, Exhibits A through S (Doc. 293, collectively the " PT documents" ).
The initial disclosure request of November 30, 2001, was general and asked for plant and equipment related documents, production and communications records relating to production of carbon black at the plant, and product data and installation records relating to equipment used to manufacture carbon black. The subsequent discovery requests became more specific. The PT charts outlined certain documents that were requested, but not disclosed, by the property owners prior to trial.
Chart A traced violations back to some of the original document requests generated in this case:
1. December 13, 2001: Property Owners' Requests for Production
Request 8 asked Continental to:
Produce copies of any and all internal memos, emails, or any other type of communication discussing carbon black dust emissions or pollution, either internally or with third parties, and complaints from citizens surrounding the Phenix City Continental Carbon plant [" the plant" ].
Request 13 asked Continental to:
Produce copies of any logs and/or monitoring reports and/or summaries relating to emission control, or prevention of emission of carbon black particulate matter into the environment from [the plant].
Request 16 asked Continental to:
Produce " plant and equipment related documents ... data relating to the equipment currently used to manufacture carbon black ... [and] installation records relating to equipment installed at [the plant].
(Doc. 317-2, pp. 1-2, emphasis supplied).
Continental's response to requests (8) and (16) was that the requests were overly broad and unduly burdensome and, to request (13) that it was vague and unclear, but that CCC would " produce such documents that are responsive to this request and that have been located after a reasonable review of corporate records." As to other responses, CCC would supply documents after " entry of an appropriate protective order" (Doc. 317-2, p. 6-7).
2. January 28, 2003: Property Owners' Second Consolidated Discovery Requests
In light of the original documents received, the property owners asked for certain admissions in their second consolidated request. Those included admissions that (1) CCC experienced problems with its bag filter systems at the plant, (2) CCC had frequent bag filter failures, and (3) bag filter failures resulted in carbon black emissions. In addition, the property owners requested further documents.
Request 3 asked Continental to:
Produce copies of all cost estimates, reports, executive summaries, or evaluations for continenal [ sic ] Carbon Company concerning environmental issues and improvements for the bag filter compartments at the Phenix City plant from 1998 to the present.
Request 4 asked Continental to:
Produce all emails within Continental Carbon Company concerning economic justification and/or economic evaluation of improvements to the main bag filter system bag filters, and filter bags at [the plant] from 1998 to the present.
Request 5 asked Continental to:
Produce all studies, reports and evaluations of carbon black leaks, spills, or discharges occurring as a result of reported, broken or torn bag filters or filter bags at [the plant].
(Doc. 317-2, p. 3).
The requests in Chart A established that the property owners requested (1) internal memorandum, emails, or any other type of communication discussing carbon black dust emissions or pollution, either internally or with third parties, (2) logs and/or monitoring reports and/or summaries relating to emission controls, or prevention of emissions of carbon black particulate matter into the environment from the plant, (3) data relating to the equipment currently used to manufacture carbon black, and installation records relating to equipment installed at the plant, (4) cost estimates, reports, executive summaries for improvements for the bag filter compartments at the Phenix City plant, (5) economic justification and/or economic evaluation of improvements to the main bag filter system bag filters, and filter bags at the plant, and (6) studies, reports and evaluations of carbon black leaks, spills, or discharges occurring as a result of reported, broken or torn bag filters or filter bags at the plant. The discovery violations addressed in this recommendation emanate primarily from the above requests.
In response to these requests, Continental identified that it produced records pertaining to maintenance, repair and design of equipment used in the carbon black production process, including bag filter compartments and related equipment (Doc. 317-2, p. 1-4). Yet it also claimed the property owners' requests were vague, ambiguous and unintelligible in using " bag filter" and " filter bag" as separate terms; burdensome, oppressive, vague, ambiguous, and/or overly broad as to time period and scope; and that the information was not relevant to the subject matter of the litigation and not reasonably calculated to lead to the discovery of admissible evidence. Continental objected to other requests on similar grounds (Doc 317-2, p. 7-9).
The property owners brought motions to compel on February 18 and March 13, 2003 (Docs. 92, 98). On March 18, 2003, the court advised that failure to properly respond to discovery requests in good faith could lead to sanctions (Doc. 101). On April 11, 2003, the court ordered supplementation of Rule 26 disclosures and ordered the retention of all records in the parties' possession throughout the pendency of the litigation (Doc. 111).
On March 25, 2003, the property owners brought motions to (1) compel discovery responses and for an order compelling corporate representatives for deposition, (2) reported to the court on outstanding discovery issues, and (3) prepared a brief in support of it motions (Docs. 104, 105, 106, 109). Discovery status conferences were held on March 28, 2003 (Doc. 107), and April 4, 2003 (Doc. 110, placed under seal ). On April 4, 2003, the court ordered the parties to supplement their Rule 26 disclosures (Doc. 117).
Document inquiries were made by interrogatories prior to the depositions of the president of CSRC, Dr. Peter Wu (" Wu" ) on April 21, 2003, again addressing emails, documents, memoranda, reports, notes, letters, or communications of any and all kinds that he prepared, received or reviewed pertaining to CCC's environmental matters, capital or operational expenditure proposals and/or plant equipment problems. Wu's response was " I do not receive detailed operation reports pertaining to environmental matters or plant equipment problems at the Phenix City plant" (Doc 317-2, p. 10). Continental fought to prevent answers to the property owners' inquiries to Wu by arguing later at hearing that disclosures by interrogatories could only be addressed to party defendants.
On April 11, 2003, Continental was ordered to produce corporate representatives, Kim Pan (" Pan" ), Leslie Ku (" Ku" ) and Wu for depositions (Doc. 112). On April 14, 2003, the magistrate judge allowed in her order for the property owners to propound 10 written interrogatories on Ku and Wu, and that these individuals should respond on or before May 5, 2003 (Doc. 113). As of September 4, 2003, Pan's deposition had not been completed because Continental had not disclosed documents requested for deposition which included the weekly/monthly operations reports concerning environmental issues with CCC. Continental continued to refuse to schedule the deposition of Wu, and other employees and officers. Though they were requested in the property owners' motion of March 25, 2003, requests for expenditure reports (" RFE's" ), regarding pollution controls, had not been produced. In addition, the in-camera documents still had not been produced at this time (Doc. 132). The district judge denied the property owners' motions regarding discovery issues until class certification had been decided (Doc. 148). After the class certification was denied, the property owners renewed their motions to compel the depositions of Pan and Rodriguez, and this motion was granted on February 21, 2004 (Doc. 165).
On April 29, 2003, a hearing was held in camera and under seal because the property owners had obtained documents from non-party sources that were not previously disclosed by Continental ( See, Doc. 117, p. 2, in camera Docs. P-1 through P-106). The property owners claimed that the subject documents supported its claim in prior motions that Continental intentionally suppressed documents going directly to issues that Continental had denied, including:
(a) The company's knowledge of the discharge of carbon black dust on the surrounding community;
(b) The causes of the problem;
(c) The names of those persons with knowledge of the environmental and operational problems at the plaint [ sic ];
(d) Proposed cures and remedies for the pollution, operation and environmental problems;
(e) Delays in implementing corrections to the plant's operational and environmental problems; and
(f) The costs involved correcting operational and environmental problems versus delays in making the corrections.
(Doc. # 117, p. 3).
The documents were placed under seal so that Continental was prevented from tailoring its responses so as to produce only those documents already in the possession of the property owners. The same documents were later offered for evidentiary submission by the property owners in response to Continental's Motion for Summary Judgment that was based in part upon Continental's assertion that CSRC " played no role" in the daily operations of CCC (Doc. 120, p. 2). At that point, the sealed documents still had not been produced by Continental.
The property owners requested another set of documents prior to the deposition of the president of CCC, Pan, on February 10, 2004. The property owners requested (1) all reports evaluating or explaining problems of any type of bag filters at the plant, and all reports of pollution, emissions, or fugitive releases of carbon black at the plant directed to management of CCC in Houston or to CSRC, (2) RFEs, executive summaries that pertained to the same, and (3) studies, reports and evaluations of carbon black leaks, spills, or discharges occurring as a result of reported, broken or torn bags at the plant. Similar documents were requested prior to the deposition of the Vice President of Operations for CCC, Juan Rodriguez (" Rodriguez" ) (Doc. 317-2, p. 3-6). On February 12, 2004, Continental was compelled to allow the depositions of Pan and Rodriguez (Doc. 165). Discovery cut-off was set for June 18, 2004 (Doc. 162). Issues of summary judgment were decided on June, 25, 2004 (Doc. 175).
See Footnotes 2 & 4.
In light of the property owners' renewed motion to compel discovery, and after a hearing on the matter before the magistrate judge on August 6, 2004, the court granted plaintiff's motion to compel discovery of " redacted" documents, thermal oxidizer data, Triboguard readings, documents from the privilege log, predecessor documents, and to produce certain witnesses for trial (Doc. 192). Acutely aware of the discovery struggles that had taken place over the prior years, and responding to the Continental's objections to and appeal from the magistrate judge's August 6, 2004 order compelling discovery of a host of documents not yet provided, or provided only in part (redacted documents), the district court gave a final pre-trial warning in its order of August 10, 2004: " The parties are hereby advised that failure to fully comply with the letter and spirit [of this Order] will result in the imposition of sanctions which will be swift in coming and painful in execution " (Doc. 195, emphasis supplied ).
The district judge overruled Continental's objections as to this order on August, 10, 2004, with another warning from the court as to cooperation (Doc. 195). Trial began on August 11, 2004.
Subsequent to trial, the property owners requested injunctive relief in accordance with the favorable judgment awarded by the jury. Permanent injunctive relief was granted on January 31, 2005, and a new discovery schedule was issued on all issues relating to the nature and scope of the injunctive relief. Responding to this issue, Continental submitted certain supplemental evidence.
The district court, in an order dated January 31, 2005, denying the property owners' request to strike certain documents from the post-judgment consideration of injunctive relief, made this commentary as to Continental's conduct:
Defendants' admitted failure to comply with the letter and the spirit of the Federal Rules of Civil Procedure regarding discovery is deeply troubling to this Court. Indeed, given that Defendants and their counsel have exhibited what can only be described as a pattern of disregard for the Federal Rules of Civil Procedure concerning discovery and this Court's prior discovery orders, the Court firmly believes that Defendants and their counsel are due to suffer some adverse consequences for their conduct. Despite this belief, the Court cannot find that the sanctions requested by Plaintiffs may be imposed pursuant to Rule 37(c)(1).
(Doc. 238, emphasis supplied; see also Doc. 293).
The property owners alleged that between March 28 and April 6, 2005, Continental produced 98,939 pages of documents that were both responsive to the property owners' new discovery requests, and which were discovered in a related state case filed in the Circuit Court of Russell County, Alabama (Doc. 293, p. 2). Continental then produced another array of documents in May of 2005. All told there were over 100,000 pages of documents subsequently disclosed post-trial (Doc. 349:6). After reviewing the documents submitted by Continental, the property owners brought a motion claiming that Continental was now producing PT documents that they had never seen before, and which should have been provided prior to trial (PT documents, Exhibits A through S; see also PT Charts A through S). The property owners argue that this small batch of undisclosed documents was used to demonstrate Continental's intentional scheme to withhold large categories of documents (Doc. 349:7). Exhibits A through O involve a series of communications concerning a policy established by Continental as early as February of 2004 to withhold documents. The documents were offered to establish that top officials at CCC and CSRC agreed to hide evidence of environmental issues by filtering them though outside counsel, Tony Ching (" Ching" ), for the purpose of claiming attorney-client privilege. Among the property owners requests were " any additional or further sanctions against Continental that the Court deems appropriate under the circumstances" (Doc. 230).
See Riley, et al. v. Continental Carbon, et al., 3:04-CV-712-MHT.
See also related motions: Doc. 273 (First Motion to Compel Post Trial Discovery); Doc. 287 (Supplemental Evidentiary Submission (Based on Newly Discovered Evidence) In Support of Plaintiffs' (273) Motion to Compel Discovery Responses); Doc. 293 (Brief in Support of Plaintiff Motion to Supplement the Trial Court Record with Evidence Wrongfully Withheld by Defendants from Pretrial Discovery); Doc. 297 (Order to Supplement the Trial Court Record with Evidence Wrongfully Withheld); Doc. 299 (Plaintiff's Brief in Support of Motion-with 19 Exhibits); Doc. 306 (Order denying Motion to Supplement Trial Court Record); Doc. 308 (Supplemental Motion for Monetary Sanctions).
The district court made further commentary as to Continental's actions in their order of August 19, 2005. At that juncture, the property owners' had requested that the court supplement the record with the PT documents for purposes of Continental's appeal:
The Court held a hearing on this matter on August 18, 2005. Defendants have established a pattern of conduct during the course of this litigation which is far from exemplary. In this Court's view their admitted decision to stop supplementing prior discovery responses or disclosures as of the end of December of 2003 cannot be justified as good faith compliance with either the orders of this Court or the letter and the spirit of the Federal Rules of Civil Procedure. As this Court has previously observed, given that Defendants and their counsel have exhibited what can only be described as a pattern of disregard for the Federal Rules of Civil Procedure concerning discovery and this Court's prior discovery orders, the Court firmly believes that Defendants and their counsel are due to suffer some adverse consequences for their conduct.
(Doc. 306, emphasis supplied ).
In the same order, the court referred the matter to the magistrate judge for a ruling on monetary sanctions. The magistrate judge directed the property owners to provide a definitive sum as to sanctions, and to itemized attorney fees and expenses. In the property owners supplemental motion (Doc. 308, 308-1), they addressed the issue of monetary sanctions and provided an itemization of cost and attorney fees incurred in pursuing the post-trial motion regarding evidence wrongfully withheld. On November 10, 2005, the magistrate judge conducted a hearing on the property owners' supplemental motion. The property owners admitted additional exhibits containing other documents which Continental failed to produce prior to trial (Exhibits " Z," " AA" and " DD", Doc. 349:12-16).
These additional documents were produced to prove the connection between CCC and CSRC. Exhibit " Z" was an email to president Pan of CCC, and president Wu of CSRC (it was also sent to attorney Ching), suggesting a scheme to withhold evidence by routing documents through Ching. At the hearing, defense counsel for Continental affirmatively represented that no legal advice was sought or given in response to these documents (Doc. 349:32). Exhibit " DD" is a report that compiles monthly data of environmental problems relating to every single plant CSRC parented, including CCC (Doc. 349:15-17). Continental claimed " AA" was not in existence at the time of trial.
At the November 10, 2005 hearing, the parties stipulated to a $250 per hour rate for attorney fees (Doc. 319, 346), and the property owners filed itemized statements regarding the hours spend post-trial in their attempt to have the PT documents (1) struck from the record in the court's consideration of injunctive relief, (2) allowed to supplement the trial court's record for purposes of appeal, and (3) for purposes of monetary sanctions. The first two types of relief have been denied by prior orders of the court (Doc. 238, 306). Since the district court granted the property owners' motion for reconsideration of the magistrate judge's order of October 20, 2006, as it did not address monetary sanctions, this court now addresses that issue pursuant to the district court's mandate (Doc. 347).
II. ANALYSIS
A. The property owners' argument for sanctions
The property owners seek sanctions pursuant to the Federal Rules of Civil Procedure Rule 37 for Continental's deliberate failure to conceal information during the course of this litigation, and particularly, prior to trial. The property owners became aware of the PT documents with post-judgment disclosures, and by disclosures made by Continental in the related case filed on March 1, 2004. The property owners claim that Continental produced emails describing an elaborate internal communication and document delivery scheme between defendant CSRC and CCC that was solely designed to keep discoverable information from the property owners and their counsel prior to trial. The property owners argue that the PT documents should have been produced long ago in response to its numerous discovery requests and motions, many of which were reduced to orders to compel discovery against Continental. Asserting prejudice because the PT documents were not available for review before the Eleventh Circuit Court of Appeals, the property owners requested sanctions in an amount equal to the judgment, or in the alternative, that monetary sanctions should include all attorneys' fees and expenses incurred by the property owners, in addition to the time and effort spent by this court, in addressing Continental's pattern of disregard for the Federal Rules of Civil Procedure, including violations of this court's prior discovery orders. They argue " [u]nless such penalty is imposed against the defendants in the form of monetary sanctions, the integrity of the judicial process will be greatly diminished and the defendants will consider themselves free to offend that process again in the future" (Doc. 346, p. 10-11).
See supra at note 8.
This argument is rendered moot by the 11th Circuit's affirmance of the judgment. The case, however, has not yet come to rest, and it is postured for an appeal to the Supreme Court ( See supra, at note 6).
This argument was essentially rejected by Magistrate Judge McPherson at the hearing on November 10, 2005 (Doc. 349:4).
B. Continental's argument against sanctions
Continental contends that Rule 37(a)(4)(A) is not applicable because the PT documents were not produced pursuant to a motion to compel, rather, the PT documents were produced to different property owners in response to different document requests in another case against the same defendents. Counsel for Continental claimed at the hearing on August 18, 2005, that Exhibits A through S were produced in the Riley litigation in Alabama state court, and not in this case. In a similar argument, after admitting that it had an obligation to produce certain documents and supplement its discovery responses, Continental argued that even if some of the PT documents should have been disclosed, that the error was harmless because the property owners prevailed at trial. Essentially, what Continental purports is, as long as the property owners prevailed, it does not matter if Continental cheated in its' attempt to win. Continental also claimed in its' responses that certain documents were subject to attorney-client privilege. Finally, Continental argues in its brief that Rule 37 does not apply to evidence discovered post-trial.
C. Rule 37
Rule 37 governs sanctions for a party's failure to disclose required discovery information. It states as follows:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior responseIn addition to or in lieu of this sanction, the court, to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B) and (C) and may include informing the jury of the failure to make the disclosure.
Fed.R.Civ.P. 37(c)(1) ( emphasis supplied). Pursuant to Rule 37, the court may also (A) order certain facts to be taken as established, (B) prohibit the disobedient party from supporting the designated claims or defenses, or from introducing evidence, and (C) strike pleadings, stay proceedings, enter a default dismissal of the action or judgment, or award monetary sanctions. Fed.R.Civ.P. 37(b)(2)(A)-(C).
The court is not, however, limited to actual harm caused by the misconduct. Rule 37(c)(1) sanctions are broad and encompass not only the rectification of actual harm, but also allow for sanctions for a defendant's failure to maintain and preserve the sanctity of the court and to respect its rules. A district court may impose " an order treating as contempt of court the failure to obey any orders." Ins. Corp. Of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 695, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Contempt may be either civil (remedial) or criminal (punitive-to vindicate the authority of the court). Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827-28, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). A finding of failure to comply with discovery orders is a finding of civil contempt. Id. at 833, 114 S.Ct. 2552.
The court also has inherent powers to impose sanctions to achieve the orderly and expeditious disposition of cases where a party's conduct disrupts or impairs the judicial process, especially where there is bad-faith conduct. As the Supreme Court indicated in Chambers :
[I]t is firmly established that " [t]he power to punish for contempt is inherent in all courts." This power reaches both the conduct before the court an that beyond the court's confines, for " [t]he underlying concern that gave rise to the contempt power was not ... merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial."
* * *
When there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power. Id. at 50[, 111 S.Ct. 2123].
Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 50, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); see also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir.2001).
Continental claimed at the hearing on August 18, 2005, that it should not be sanctioned because some of the PT documents identified in Exhibits A through S were produced in the Riley litigation in Alabama state court, and were not documents produced in this case post-trial. Continental's argument is without merit. The sanctions under Fed.R.Civ.P. 37 are predicated upon a party's failure to disclose information that should have been disclosed pursuant to Fed.R.Civ.P. 26(a) or 26(e)(1), or failure to amend a prior response to discovery as required by Fed.R.Civ.P. 26(e)(2). As further discussed below, this court finds that the large majority of the PT documents should have been disclosed in response to properly promulgated requests and prior orders of this court.
But see Continental's response to a post-judgment order of April 11, 2005, suggesting that it intended the documents produced in the state action to be effective for the federal action as well (Doc. # 278, p. 9).
" A party is under a duty to supplement their responses at appropriate intervals (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(1)(a).
" A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or oncorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed.R.Civ.P. 26(e)(2).
Continental also argues that sanctions should not be imposed because the property owners were not harmed given they prevailed at trial. This argument is also without merit. To require the property owners to prove that the verdict would have been greater if they had the benefit of the undisclosed documents would be manifestly unfair. " [A] litigant who has engaged in misconduct is not entitled to ‘ the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.’ " Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir.1978), citing Minneapolis, St. Paul & S.S. Marie Ry. Co. v. Moquin, 283 U.S. 520, 521-22, 51 S.Ct. 501, 75 L.Ed. 1243 (1931).
In Rozier, 573 F.2d at 1342, the court further stated as to the defendants failure to supplement its responses: " If Ford in good faith believed that the district court's order was not intended to compel production of this document, the appropriate remedy was to seek a ruling by the district court at that point and not a year after the trial and then only when, by chance, the plaintiff learned of it."
In addition, Continental claims that the property owners have never linked the undisclosed information to particular discovery requests and that its prior responses were not deficient in any " material respect" (Doc. # 314, p. 3). This argument is refuted by the 19 analytical charts provided by the property owners, Charts A through S, which coincide with Exhibits A through S, appended to the property owners' motion to supplement the trial court record (Doc. 293-1, Doc. 316). Each chart identifies the pertinent discovery request and attaches the specific PT document that was provided post-trial, highlighting the information that related to the request. For example, Chart A outlined the requests made on December 13, 2001 and January 28, 2003, and indicated Continental's response to those request, as noted above. The property owners outlined other violations as they related to the balance of the PT documents (Charts B-S). In addition, Exhibits Z, AA and DD, submitted at the November 10, 2005 hearing, outlined further abuses. The abuses primarily pertain to emails between key company personnel, and altered or sanitized documents that revealed that CSRC exercised dominion and control over CCC. This court now discusses more fully the violations in connection with the property owners' numerous requests both pre- and post-trial.
See supra at pp. 673-74.
1. Emails
The property owners established that the post-trial discovered information included emails between key officers and employees of CCC and CSRC (Exhibits A through O). In Exhibit A, there are questions coming from CSRC to CCC asking about bag filter problems at the plant. In Exhibit B, there is a March 8, 2004, email from the President of Operations, Rodriguez of CCC, to a CSRC officer discussing problems with equipment (found in daily reports-also not disclosed) at the plant. In Exhibit C, Rodriguez informed Pan, Wu and others of the following:
At the present time the Phenix City Plant has a lawsuit against it alleging that environmental emissions have negatively impacted a community in Columbus, Georgia. Among other required information, we are required by law to provide the opposing attorneys all correspondence (including emails) related to Phenix City bagfilters [ sic ] . As you know, the opposing attorneys will take the information and try to show CCC and the Phenix City plant to the jury and public as badly as possible. For that reason, I am asking you to not ask any more questions regarding bagfilter issues or any related environmental emission questions. If you have a need tohave more information, please call David Pacobit directly. Or better still, please send the question via our attorney, Tony Ching (with copy to Amy Mathis, and me), so that the information can remain an attorney-client previlege [ sic ].
We apologize for this request, but it is important that we not continue to create a larger problem for ourselves than we already have. If you have any questions, please do not hesitate to let me know. Sorry for the inconvienance [ sic ].
(Doc. # 293-4, Exhibit C, emphasis supplied ). This email alone suggests an intent by the parties, as of March 10, 2004, to subvert the discovery process.
Continental also argued strongly in their objections to deposing Pan and Wu prior to trial, that these officers knew nothing about environmental problems (Doc. 317-2, Chart A, p. 10; 349:39). The property owners persuasively argue, however, that the collection of emails (Exhibits A through O) suggests additional communications not disclosed regarding discussions about environmental issues and pollution control equipment between CCC and CSRC. An email from Rodriguez of CCC (Exhibit Q), instructs the corporate environmental officer of CSRC, to channel SHEA weekly reports through Ching, and to sanitize the documents for further use. The property owners never received the SHEA reports, which were a summary of environmental matters, either before or after trial.
The property owners argue that the filtering of emails was clearly designed to monitor communications between CCC and CSRC for purposes of minimizing the link, in term of the scope of knowledge regarding defects and leaks, between the parent and its subsidiary. Continental's intention is made clear by Exhibit Z. In this email, Rodriguez sent the following message to Ching (questioned by the magistrate judge in camera, Doc. 305), and other executives at CCC and CSRC, including Wu and Pan:
I think I understand how confusing it may be to have to work under restricted communications with CCC personnel at this time; but, it is very important that we maintain a specific discipline in communications because CCC is under very strict scrutiny by attorneys that would like nothing better than to be able to use CCC to get to CSRC.
* * *
The fact of the matter is that CCC does not have a lot of money, so if the opposing attorneys were to win their case against CCC, they would not really win much. However, it is my understanding that if the opposing attorneys were to be able to win their case against CCC and make the link between CCC and CSRC; then they might be able to get money from CSRC. At the advice of our legal people, we are making every effort to prevent the opposing attorneys from making the link. This is why we have asked that certain subjects be run through Mr. Tony Ching, CCC's attorney. This is an attempt to keep that information attorney-client privilege, which means that it is legally invisible to the opposing side. But we have to follow strict criteria; it must be sent to Tony Ching, copies only to those that need to know and no one else. The subject matter at this time that needs to go to Tony Ching is subject matter that relates to
1. Bag filters,
2. Thermal oxidizers,
3. Environmental issues,
4. Any communications that would appear to the Courts or a trial jury that CSRC is exercising control on CCC, particularly capitol [sic] budget or a request for expenditures.
Because this is one way the opposing attorneys would attempt to prove to the legal court that it is not the CCC board that controls CCC but instead, CSRC. Therefore, we have to use caution in our communications pertaining to RFEs.
Doc. 349, Exhibit Z, emphasis supplied; see also Doc. 299, Exhibit J (" Communication Guidelines" for written communications relating to bag filters, thermal oxidizers, safety equipment, safety complaints, inspections or other sensitive issues, or other issues relating to litigation).
The relationship between CCC and CSRC was at the heart of the property owners' claim that the parent CSRC knew of the extent of the leakage problem at the subsidiary CCC. Yet, the PT documents were supplied post-trial, while seeking relief from the trial court's order for Continental to repair, rebuild and/or video monitor bag filters and thermal oxidizer equipment. As the magistrate judge observed at the hearing on November 10, 2005, " the Court would be remiss if it did not consider the scheme or pattern identified by Judge Fuller in his order of withheld documents" (Doc. 349:4).
2. Altered and " Sanitized" Documents
Many documents were altered by Continental before being produced in response to orders to compel discovery. These documents included corporate environmental reports, RFEs, and plant operations reports (Doc. # 293-18, 19, 20 [Exhibits Q, R & S] ). It was instructed that these document also be filtered through Ching to be " sanitized" ( See Exhibit Q). The property owners' Exhibit R, disclosed after trial, showed that CSRC knew that a component of CCC's carbon black production system had " become a potential environmental risk with it leaking daily." Yet, Continental had produced only the sanitized version prior to trial that deleted this very important information. Exhibit R was a request for expenditures, an RFE, to CSRC explaining the problems with the bag filter at the plant, and that it was leaking carbon black. The approval for repairs went up the chain of command and included approval by CSRC management (Doc. 349:48).
The property owners argue these documents provided further support of the relationship between the two corporations. Post-trial, Continental introduced these RFE documents to prove that repairs had been made. Hence, the documents were clearly relevant to the determination that the bag filter problem existed prior to trial, as the repairs were made thereafter (Doc. 349:50). Exhibit S identified as " operational weekly reports" dated September 12 through 18, 2002, and January 1 through 8, 2003, were other documents that were " redacted," i.e. parts of the documents were deleted prior to disclosure. One such document discussed visits by CSRC to CCC for purposes of reviewing major CCC capital projects for 2003 (Doc. 349:54). At earlier proceedings, Continental claimed that the redacted documents were based on attorney-client privilege. It is noted that Continental denied that the documents were subject to attorney-client privilege at hearing on November 10, 2005, and none of the PT documents were referenced on the trial privilege log (Doc. 349:44).
This court find that these documents were responsive to original discovery requests and subject to, at the very least, this court's order issued August 6, 2004, the Friday before trial. Hundred of documents were produced on the eve of trial, but the PT documents were not among them. The property owners argue that many of these documents went to the issue of the extent of the operational and environmental problems at CCC, and that Continental " sanitized" certain documents to keep this information from reaching the jury. This court agrees. The undersigned finds that the majority of documents, Exhibits A through S, were responsive to the property owners' pretrial discovery requests. This court also finds that those in the corporate chain of command supported the withholding of relevant evidence, that there was a scheme to withhold these documents and that there may be other undisclosed documents of a similar nature still undisclosed.
Indeed, it appears that the sequence of events throughout the litigation, in addition to the document delivery scheme between the parent corporation, CSRC and it subsidiary CCC, evidenced a deliberate choice by Continental to hide certain evidence by stonewalling and by claiming attorney-client privilege to prevent disclosure of relevant and important evidence prior to trial. Continental's attempt to claim mere oversight seems disingenuous given it disclosed some of requested documents in a related case, and also used the PT documents for the purposes of staving off the injunctive relief sought by the property owners post-trial. After being questioned by the court, Continental admitted that it did not produce Exhibits A through M, P or Q, and only produced in part Exhibits R and S ( See Evidentiary Submission in Compliance with this Court's Order of October 6, 2005 filed by Continental, Doc. # 318).
In the same submission, Continental claims documents N and O did not exist at the time of trial, and admits that R and S were produced in redacted form (Doc. 318).
Continental also admitted that they decided to stop supplementing prior discovery responses or disclosures at the end of December of 2003, even though they were reminded in this court's order of January 28, 2004, to exercise due diligence, to respond to requests reasonably and promptly, to avoid discovery disputes, to communicate promptly and directly when differences surface and to " cooperate as Officers of the Court with each other and with the court in the resolution of discovery disputes" (Doc. 164, p. 2). The court stated further in its January 28, 2004 order:
In the interest of preserving already-scarce litigation resources for everyone, counsel are advised to apply a conciliatory-rather than adversary-approach to the resolution of their discovery disputes. Their failure to do so will invite this court's consideration of sanctions upon the offending party or counsel. The parties are further reminded that the Court of Appeals has upheld the award of sanctions against a law firm and its client for discovery abuses. See BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045 (11th Cir.1994); Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510 (11th Cir.1986).
These cases are instructive. The district court in BankAtlantic, ordered in part: (1) that defendant produce all witnesses and documents, (2) that defendant bear reasonable costs of plaintiff's time and preparation in filing the motion to strike and in preparing for the new trial, including the costs of expedited discovery, (3) that a $250,000 bond for plaintiff's costs (to be determined post-trial) be obtained, (4) that defendant's asserted privileges be waived, (5) that the plaintiff be awarded triple interest if it prevailed on the merits, (6) that an instruction be given to the jury on defendant's failure to produce discovery as a factor to be considered in determining defendant's liability, and (7) that its order be published in the official reporter to deter future misconduct. BankAtlantic v. Blyth Eastman Paine Webber, Inc., 127 F.R.D. 224, 234 (S.D.Fla.1989). The circuit court affirmed the district court's sanctions. BankAtlantic, 12 F.3d at 1052.
In Pesaplastic, C.A., the district court held the attorneys therein to be in contempt. It awarded sanctions of reasonable expenses, including costs and attorney fees, after a hearing on plaintiff's motion to compel, where the attorneys conducted themselves " in a manner not befitting officers of the court" and where they failed to " deal honestly and fairly with opposing counsel." 799 F.2d at 1522. The court added:
The attorneys of the Law Firm have clearly failed to fulfill these duties. Indeed, they represent yet another case of attorneys having " ‘ sold out to the client.’ " Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1154[1454] (11th Cir.1985) ... In so doing, the attorneys of the Law Firm lost sight of the fact that, as members of the bar, and officers of the court, or primary responsibility is not to the client, but to the legal system. Our judicial machinery is dependent upon the full support of all members of the bench and bar. Advocacy does not include " game playing." Conduct such as that engaged in here must not, and can not and will not be tolerated.
Id. at 1522-23.
The PT documents go directly to the key issues in the case. First, they go to the issue of whether there were fugitive emissions at the plant. Indeed, counsel for Continental argued during trial, and represented to the jury, that there were few emissions, or if there were any emissions, that they were not harmful (Tr 1:36). Second, they go to the issue of the relationship between the parent and it subsidiary, and the liability attributable to each. The property owners provided detailed charts indicating how each of the documents requested were responsive to pre-trial discovery requests, motions and orders of this court. Continental made arguments as to some of the documents but, in the end, admitted that it did not produce them. It also did not give an adequate justification for withholding the PT documents. This court is convinced that the majority of the PT documents requested were subject to disclosure under Fed.R.Civ.P. 26(a), 26(e)(1) and 26(e)(2) (duty to supplement) ( See Doc. 293-1, p. 2-3), and Continental was required to make all reasonable efforts to produced them. Pesaplastic, C.A., 799 F.2d at 1521. Thus, it is found that Continental willfully, openly and in bad faith refused to comply with direct orders from this court.
It is further noted that defendant CSRC is making the claim on appeal that they are entitled to judgment as matter of law (" JMOL" ) or remittitur based on insufficiency of evidence regarding direct liability of CSRC (Doc. # 281, p. 10), a position this court notes is inconsistent with the documents withheld. The intent of Continental on appeal is to reduce the verdict, reverse one or more components of the case or obtain a new trial. If they are successful, Continental's strategy to withhold evidence until the post-trial stages would enure to them great benefit. Barring that, there is still the issue of the waste of time and expense of this court in the pre- and post-trial discovery battle that has gone on for some six years. Thus, this court has determined by a review of the record, the PT documents were relevant, intentionally withheld by officers and employees of Continental and their counsel, particularly Ching; they were non-privileged and not subject to other protections.
See Tr 2:11-12.
Absent from Continental's arguments is a justification as to why it was proper to force the property owners to seek court intervention over and over again, wasting huge amounts of time and money secure responses to discovery requests, when good faith compliance with the Federal Rules of Civil Procedure would have made such continuous and costly intervention unnecessary. In fact, it appears from the record in this case, that Continental concealed their non-compliance with discovery requests and orders until after the trial, by systematically ignoring adverse rulings, and now argues post-trial that because the documents were discovered after a verdict was rendered the violations do not count.
In addition, defendant argues that, if discovery violations are found, that the appropriate remedy is a new trial. Defendant cites to Rozier, supra, for the proposition that this is the correct remedy (and by the supposition suggests that monetary sanctions are not). In Rozier, however, the plaintiff was requesting a new trial, and the district court had to determine whether the trial court abused its discretion by denying this request under Fed.R.Civ.P. 60(b)(3). The district court concluded that the defendant had perpetrated a " fraud upon the court" by withholding properly requested undisclosed documents and, as such, granted a new trial to plaintiff for the egregious misconduct. Rozier, 573 F.2d at 1337-40. As in the instant case, the documents were discovered post-trial. As in the instant case, the documents were properly requested, and the court had issued orders to compel prior to the trial's inception. The case addressed Rule 60 instead of Rule 37, but the policy considerations were the same. The most compelling and overriding policy consideration was adherence to the discovery rules for the proper functioning of the civil litigation process in general:
Our system of civil litigation cannot function if parties, in violation of court orders, suppress information called for upon discovery. " Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947).... The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial ... The aim of these liberal discovery rules is to " make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co.,Dollar v. Long Mfg., N. C., Inc., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).... It is axiomatic that " discovery by interrogatory requires candor in responding." 561 F.2d 613, 616 (5th Cir.1977).
Rozier, 573 F.2d at 1345.
It is interesting to note that Continental is asking for one of the harshest sanction (new trial) if it is found that it violated the discovery provisions of the Federal Rules of Civil Procedure. Since Continental lost below, this court recognizes that the defendants would possibly prefer a new trial because it would give them a second bite of the apple and, potentially, a different (and hopefully, smaller) outcome. This result could actually enure to Continental's benefit, yet the goal of Rule 37 sanctions is to compensate, deter and even punish discovery violations that were committed wilfully and in bad faith. Goodman v. New Horizons Community Service, Slip Copy, 2006 WL 940646 (11th Cir.2006). In Goodman, the Court succinctly stated: " Rule 37 sanctions were designed not merely to penalized those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Id., citing Carlucci, 775 F.2d at 1447. Granting a new trial would not necessarily be a deterrent in the instant case, unless this case is reversed on appeal.
The record is replete with motions and orders in connection with discovery requests made of Continental by the property owners. The court in its various orders gave Continental several warnings as to their less than exemplary " established pattern of conduct." The documents in question provide accounts of the internal discussions between CCC and CSRC regarding needed improvements and prevention of carbon black emissions at the Phenix City, Alabama plant. The entire focus of the case revolved around whether there were carbon black emissions that affected the surrounding property owners and whether CSRC knew of the leaks and/or were involved in authorizing repairs.
It is interesting to note that, after the jury found in favor of the property owners, Continental subsequently submitted these very documents post-trial to stave off injunctive relief claiming the emissions were sporadic and isolated. The value of the documents was evidence by Continental's reliance on them in its' post-trial arguments. Continental has not supplied any substantial justification for withholding these documents; it stated in oral argument, " I cannot explain why those particular documents were not produced" (Tr 1:25), and that it could have been an " oversight" (Tr 1:37). Continental admitted that it should have disclosed certain documents (Tr 1:39). It later argues that the documents were not reviewed for relevance (Tr 1:25). However, it is clear that Continental had plenty of time to make this analysis.
The property owners claim that they would have changed the way the case was presented at trial and that it would have strengthened the record on appeal as to actual damages and punitive damages (Doc. 306, p. 10-11, 14-15). They also argue that disclosure could have possibly shortened the trial and made settlement more likely. They further claim, and this court agrees, that early disclosure would have undeniably saved this court valuable time, and the constant battling over disclosures wasted the courts' resources (Tr 1:32). It is also noted that Continental had to be compelled through repeated motions and after sometime lengthy oral arguments on various motions, to deliver documents that routinely should have been disclosed. One of the last orders, done on August 6, 2004, four days before trial began, ordered Continental to produce the full text of redacted documents, ADEM reports (Exhibit A), Plant Safety Assessment data and privilege logs (Exhibit H) (Doc. 195, p. 4-5). Even at the midnight hour, Continental was contemptuous of direct orders from this court. It was Continental's contumacy, rather than its oversight, that led to Continental's failure to disclose documents prior to trial. In light of all this, it cannot be argued that the error was harmless.
The property owners claim that Exhibit DD-which included a spreadsheet of every single equipment malfunction that occurred during the one-month period at all of the plants, including Phenix City-could have cut through days of trial because the charts were sent directly to top officials of CSRC (Doc. 349:18).
A total of approximately 10.5 hours were devoted just to the three hearings, January 19, 2005, August 18, 2005, and November 10, 2005.
The court noted in its order of August 10, 2004, that " instead of obliterating the objectionable text, the defendants have apparently omitted the objectionable text, making it impossible to determine (1) the size of the omission, (2) the context of the omissions, or (3) the ratio between the omitted text and the full document" (Doc. 195, p. 2, emphasis in original).
D. Civil Sanctions: Attorney Fees and Costs
There is no question that Continental failed to comply with direct orders from this court to produce documents the property owners requested during discovery. Plainly, the PT documents evidence a rash of violations to which Continental has no valid response. Continental admitted that it did not produce them. The emails, alone, show a purposeful scheme to prevent the property owners from discovering documents that Continental viewed as harmful to their defense of the case. This court finds that Continental was required to produce pertinent documents contained in Exhibits A through M, P and Q, parts of R and S, as well as Exhibits DD and Z pursuant to Rule 26(a), 26(e)(1) and 26(e)(2) of the Federal Rules of Civil Procedure.
A finding of failure to comply with discovery orders is a finding of civil contempt. Int'l Union, United Mine Workers of Am., 512 U.S. at 833, 114 S.Ct. 2552. Rule 37 sanctions such as attorney's fees may be imposed without a showing of willfulness or bad faith on the part of the disobedient party, however, the most severe sanctions of default judgment or dismissal cannot be imposed for violation of a discovery order caused by simple negligence, misunderstanding or inability to comply. BankAtlantic, 12 F.3d at 1049. This district court has " broad, although not unbridled, discretion in imposing sanctions" under Rule 37. Pesaplastic, C.A., 799 F.2d at 1519, citing Dorey v. Dorey, 609 F.2d 1128, 1135 (5th Cir.1980). This is especially true when the court imposes monetary sanctions. Id. Failure to produce documents or individuals for deposition pursuant to motions to compel forms a sufficient basis for the award of attorney's fees. Id. A basis for the reasonableness of the fees may be determined by analyzing the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. See, Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc) the Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
In connection with their motion, the property owners submitted a statement of costs that included a detailed summary of the time and expense incurred by the respective counsel for the various property owners (354-1, Exhibit A). The parties stipulated to a $250.00 per hour rate for attorney fees. The law firm of Beasley, et al., expended 189.20 hours of time and $806.13 in expenses for a total of $48,106.13, in connection with this motion. The law firm of Friedman, et al., expended 206.50 hours and $1,386.90 in expenses, for a total of $42,852.50 ( See Doc. 354, amended to $42,239.40 in Doc. 357). The law firm of Jackson, et al., incurred 78.85 hours and $1,087.59 in expenses, for a total of $20,800.09 ( See Doc. 354, amended to $20,400.09 in Doc. 357).
Continental claims the requested costs as submitted are objectionable for the reasons that entries prior to September 9, 2005, were not incurred in making the [supplemental] motion and further claims that " [t]he majority of the expenses claimed were incurred in preparing the Motion to Supplement the Record that was denied by the court" (Doc. 356, p. 3). However, the district court made a finding that monetary sanctions were warranted as early as July 17, 2005, and even though it did not grant the property owners request to supplement the record, it invited them in a later order to propose specific monetary sanctions that might be appropriate. The property owners were successful in proving that Continental violated discovery requests, (and this court made several warnings prior to trial, as well), as to Continental's pattern of disregard for the Federal Rules of Civil Procedure and this court's prior orders. It was only a matter of this court determining what, if any, monetary sanctions were appropriate under the circumstances. While this court does not now consider pre-trial attorney's fees because the jury awarded attorney's fees for the property owners' pre-trial efforts, there is still the matter of this court's pre-trial efforts to resolve the many disputes concerning discovery matters initiated because Continental failed to turn over documents that in post-trial retrospect clearly should have been disclosed long before they were later discovered. There were 65 entries in the docket sheet pre-trial, and 45 post-trial. See, infra, at note 25.
Continental claims that some of the entries pertain to the property owners' efforts to supplement the trial court record, relate to the injunctive relief order, and relate to mediation. To the extent that such fees are included in the property owners' statement of cost, they are found unreasonable.
It is noted that the property owners voluntarily reduced their fees and expenses for these entries in their amended statement of costs (Doc. 357).
Continental claims that the entries are excessive because multiple attorneys reviewed documents and attended hearings. This court notes there were multiple property owners making claims, and the documents produced in this case were voluminous. Continental also was represented by numerous counsel who similarly reviewed documents and attended hearings. If it were Continental's motion, this court does not doubt that it would be asking for attorney's fees for each and every counsel that participated in the work. Therefore, the work of multiple attorneys for the property owners is found reasonable.
Continental also objects to the time spent preparing the analytical Charts A through S. Yet, these charts were used by this court, on more than one occasion, to evaluate if violations occurred, and to determine the appropriateness of sanctions for Continental's decided failure to disclose evidence. Continental further contends that a reasonable rate for some attorneys charge should be $185 per hour and paralegals' rate at $75 per hour (and defendant claims that paragraph 5 of the property owners' submission improperly calculates all attorney and paralegal time at $250 per hour), yet, Continental does not deny that it stipulated to a rate of $250 per hour as reasonable. Moreover, a closer reading of the document shows the property owners did not charge paralegal time at $250 per hour. And, the property owners claim in their brief that they were conservative in the number of junior partners and associates to which it applied this rate (Doc. 357-2, p. 5). In light of all that has transpired, this court finds their claim credible.
E. Punitive Sanctions
Though it responds to sanctions regarding attorney's fees, Continental does not provide any cogent response to the property owners' argument that the many docket sheet entries prior to and post-trial relate in one form or another to the court having to expend time and resources to address Continental's discovery abuses. Whether it would have shortened trial is speculation, at best, considering the contentious nature of the dispute. However, considerable time was spent by the district judge and his staff, the magistrate judge and his staff, and courtroom personnel attending to the various motions and hearings associated with discovery abuses beginning as early as October 2001.
The discovery related docket entries include: Docs. 81-83, 89, 91-92, 94, 96-98, 100-113, 117-118, 130, 132, 133, 140-143, 148-150, 163-166, 173-174, 178, 183, 189, 191-195, 230-234, 237-238, 253-260, 270-274, 278-280, 284, 287-288, 293, 297-302, 304, 306-308, 314, 316-319, 320, 322, 345-348, 350-353.
Coercive sanctions by way of fines are generally left to the district court's discretion. In Serra, the court stated:
The broad discretion of the district court to manage its affairs is governed, of course, by the most fundamental safeguard of fairness: the Due Process Clause of the Fifth Amendment. See Ins. Corp. of Ireland, 456 U.S. at 707, 102 S.Ct. at 2106-07. To comply with the Due Process Clause, a court must impose sanctions that are both " just" and " specifically related to the particular claim" which was at issue in the order to provide discovery.
Serra Chevrolet, Inc. v. General Motors Corp., 446 F.3d 1137, 1151 (11th Cir.2006); see also In re Grand Jury Subpoena Duces Tecum, 955 F.2d 670, 673 (11th Cir.1992) (The imposition of a coercive fine is proper for failure to produce documents, and will not be reversed except for an abuse of discretion). The fine for misconduct must be based on the record evidence and a rationale. Carlucci, 775 F.2d at 1446. The cost to the court of the numerous motions, hearings, and orders are an appropriate consideration. There must be, however, some reasonable basis for the accounting of costs and a record of its reasons for the imposition of any fine. Serra, 446 F.3d at 1152.
In light of the requirements of Serra and Carlucci, this court has calculated its approximate time from the date of its last order to compel, August 8, 2004 (Doc. 192). By that date, all of the PT documents should have been disclosed to the property owners. The rest of the time calculated by this court pertains to post-trial discovery orders and recommendations regarding the PT documents ( See Appendix I, attached, itemizing the court's time for the various entries on the docket sheet pertaining to the evidence wrongfully withheld). Over one hundred hours were spent by this court and its personnel addressing issues relating to the PT documents post-trial. As $250.00 per hour was considered a reasonable rate for counsel's efforts, it is at least as reasonable for the judges' and their staffs' efforts. Many hours were spent issuing orders, conducting hearings and conferences, reading through transcripts and the immense volume of motions, briefs and exhibits. As to the hearings themselves, a court reporter and courtroom deputy also had to be present for the ten-and-a-half hours that were spent listening to the arguments of the parties. Comparable to paralegals, we find that $75.00 per hour is reasonable for the time expended for other courtroom personnel. While the estimated time is not exhaustive of all the court's resources expended to address the egregious discovery abuses, and only considers a small portion of the time spent pre-trial, it allows some reasonable basis to account for the imposition of additional fines against the offending party.
III. CONCLUSION
This court concludes that Continental withheld evidence in bad faith and in violation of prior orders of this court. As a result, because of Continental's discovery violations, the property owners have been prejudiced in their presentation of the evidence to the jury, and on appeal.
Thus, based upon consideration of the property owners' objections and motion to reconsider the magistrate judge's order denying sanctions (Doc. 346), and the district court's order (Doc. 347, instructing this court also to consider Docs. 293, 308, 308-1), and for good cause shown, it is the RECOMMENDATION of the magistrate judge:
1. that the Motion be GRANTED;
2. that sanctions be imposed against CCC and CSRC, jointly and severally, in the amount of $120,945.59, for attorney fees and costs (itemized above) of the property owners' time and expense to pursue post-trial litigation in regard to the PT documents;
3. that additional sanctions be imposed against CCC and CSRC, jointly and severally, in the amount of $26,470.00 for the time and effort spent by the court and its staff from August 8, 2004, in connection with the ongoing litigation of discovery abuses;
4. that the additional sanctions of $26,470.00 is to be paid to the clerk of the court;
5. that this Recommendation be published in the official reporter to deter further misconduct by Continental and like-minded third parties, including litigants and attorneys alike;
It is further
ORDERED that on or before June 26, 2007 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the magistrate judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the district court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the magistrate judge's Recommendation shall bar the party from a de novo determination by the district court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the district court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982); see also, Bonner, supra, adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
APPENDIX I-HOURS REGARDING POST-TRIAL MOTION
HOURS REGARDING POST-TRIALMOTION
08/06/2004 *193 Minute Entry forproceedings held before Judge Vanzetta P. McPherson:Discovery Motion Hearing held on 8/6/2004 re 178 MOTIONto Compel and 191 MOTION for Protective Order filed byContinental Carbon Incorporated. (Digital Recording:1:39 to 3:17)(sl,) (Entered: 08/09/2004)
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08/10/2004 *195 ORDERED that thedefendant's 194 Objection to and Appeal of theMagistrate Judge's 8/6/04 192 Order is OVERRULEDand the challenged ruling of Magistrate Judge McPhersonis AFFIRMED. The parties are hereby advised thatfailure to fully comply with the letter and the spiritof the 8/10/04 Order will result in the imposition ofsanctions which will be swift in coming and painful inexecution.. Signed by Judge Mark E. Fuller on 08/10/04.(sl,) (Entered: 08/10/2004)
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10/22/2004 *231 ORDER re 230 MOTION toStrike and MOTION for Sanctions filed by The City ofColumbus, Ga, Action Marine, Inc., John Tharpe, OwenDitchfield. Brief in Support due by 11/3/2004 forplaintiffs; Show Cause Response due by 11/17/2004 fordefendants as to why the motions should not be granted.Signed by Judge Mark E. Fuller on 10/22/04. (cc,)(Entered: 10/22/2004)
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01/06/2005 *234 ORDERED that a hearingbe held on 1/19/2005 at 1:00 PM at the United StatesCourthouse, One Church Street, Courtroom 2A,Montgomery, AL. The parties should be prepared toaddress the merits of the plaintiff's pendingrequests for injunctive relief and the 230 Motion toStrike Certain Defense Exhibits Wrongfully Withheld inDiscovery and Request5 for Sanctions. Signed by JudgeMark E. Fuller on 01/06/05. (sl,) (Entered:01/06/2005)
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01/31/2005 *238 ORDER denying 230Motion to Strike certain defense exhibits wrongfullywithheld in discovery; denying 230 Motion forSanctions. Signed by Judge Mark E. Fuller on 01/31/05.(mfm,) (Entered: 01/31/2005)
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02/17/2005 *TRANSCRIPT of MotionsHearing held on 1/19/05 in Montgomery, AL before JudgeMark E. Fuller. Court Reporter: James R. Dickens. (sl,)(Entered: 02/18/2005)
2/21/2005 *253 First MOTION To ShortenTime for Response to Interrogatories and Request forProduction of Documents by The City of Columbus, Ga,Owen Ditchfield, John Tharpe. (Friedman, Jeffrey)(Entered: 02/21/2005)
02/24/2005 *254 ORDERED that the 253Motion to Shorten Time for Response to Interrogatoriesand Request for Production of Documents is granted inpart and denied in part. Accordingly, the defendantsshall serve copies of their responses upon counsel forthe plaintiffs on or before 3/1/05. Signed by JudgeVanzetta P. McPherson on 2/24/05. (sl,) (Entered:02/24/2005)
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02/24/2005 *255 MOTION for ProtectiveOrder to Quash Plaintiffs' Post-Trial ConsolidatedDiscovery Requests, or, in the Alternative, to DenyPlaintiffs' Motion to Shorten Time for Response toInterrogatories and Request for Production of Documentsby Continental Carbon Incorporated. (sl,) (Entered:02/25/2005)
02/24/2005 *256 MEMORANDUM of Law inSupport of 255 MOTION for Protective Order to QuashPlaintiffs' Post-Trial Consolidated DiscoveryRequests, or, in the Alternative, to DenyPlaintiffs' Motion to Shorten Time for Response toInterrogatories and Request for Production of Documentsfiled by Continental Carbon Incorporated.(sl,)(Entered: 02/25/2005)
02/24/2005 *258 MEMORANDUM of Law inSupport of 257 MOTION for Protective Order to QuashPlaintiffs' Post-Trial Consolidated DiscoveryRequests, or in the Alternative, to DenyPlaintiffs' Motion to Shorten Time for Response toInterrogatories and Request for Production of Documentsfiled by China Synthetic Rubber Corporation. (sl,)(Entered: 02/25/2005)
02/25/2005 *MOTIONS REFERRED 255MOTION for Protective Order, 257 MOTION for ProtectiveOrder REFERRED to Judge McPherson. (sl,) (Entered:02/25/2005)
03/01/2005 *259 RESPONSES (Objection)to plaintiffs' First Post-Trial ConsolidatedDiscovery Requests by Continental Carbon Incorporated.(sl,) (Entered: 03/02/2005)
03/01/2005 *260 RESPONSES (Objection)to plaintiffs' First Post-Trial ConsolidatedDiscovery Requests by China Synthetic RubberCorporation. (sl,) (Entered: 03/02/2005)
03/28/2005 *270 ORDERED that the 253First MOTION To Shorten Time requesting an order thatthe defendant be required to respond to thepost-judgment interrogatories and request forproduction by the end of February 2005 is denied asmoot as further set out. Signed by Judge Vanzetta P.McPherson on 3/28/05. (sl,) (Entered:03/28/2005)
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03/28/2005 *271 ORDERED that (1) the255 Motion for Protective Order is denied as moot; (2)the 255 Motion to deny the motion to shorten time isdenied. The court has entered an order denying themotion to shorten time as moot. Signed by JudgeVanzetta P. McPherson on 3/28/05. (sl,) (Entered:03/28/2005)
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03/28/2005 *272 ORDERED that (1) the257 Motion for Protective Order is denied as moot; (2)the 257 Motion to deny the motion to shorten time isdenied. The court has entered an order denying themotion to shorten time as moot. Signed by JudgeVanzetta P. McPherson on 3/28/05. (sl,) (Entered:03/28/2005)
04/04/2005 *273 First MOTION to CompelPost Trial Discovery by The City of Columbus, Ga, OwenDitchfield, Action Marine, Inc., John Tharpe.(Attachments: # 1 # 2)(Friedman, Jeffrey) (Entered:04/04/2005)
04/05/2005 * MOTIONS 273 First MOTIONto Compel Post Trial Discovery REFERRED to JudgeMcPherson. (sl,) (Entered: 04/05/2005)
04/05/2005 *274 ORDERED as follows:(1) on or before 4/11/05, the plaintiff shall file aNotice in response to this order as further set out;(2) on or before 4/12/05, the defendants shall filewith the Clerk of the court a response to the 273MOTION to Compel Discovery. Defendants are specificallydirected to file separate responses and to number theirresponses parallel to the discovery requests; (3) thecourt shall conduct ORAL ARGUMENT on the 273 motion on4/14/05 at 2:00 p.m. in Courtroom 5A, Frank M. Johnson,Jr United States Courthouse Complex, One Church Street,Montgomery, AL. Counsel for the parties shall appear atthe argument. Signed by Judge Vanzetta P. McPherson on4/5/05. (sl,) (Entered: 04/05/2005)
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04/11/2005 *276 NOTICE by The City ofColumbus, Ga, Owen Ditchfield, Action Marine, Inc.,John Tharpe re 274 Order,,, Set Deadlines/Hearings,, InResponse to Magistrates Discovery Order (Attachments: #1 # 2)(Friedman, Jeffrey) (Entered: 04/11/2005)
04/12/2005 *278 RESPONSE to 273 FirstMOTION to Compel Discovery Response filed byContinental Carbon Incorporated, China Synthetic RubberCorporation. (sl,) (Entered: 04/13/2005)
04/13/2005 *279 ORDERED that the oralarguments set for 4/14/05 at 2:00 p.m. before JudgeVanzetta Penn McPherson is continued generally untilfurther orders of the court. Signed by Judge VanzettaP. McPherson on 4/13/05. (sl,) (Entered:04/13/2005)
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04/15/2005 *280 ORDERED as follows:(1) Oral argument on the 273 MOTION to Compel is RESETfrom 4/14/05 to 4/22/05 at 11:00 a.m. in Courtroom 5A,Frank M. Johnson, Jr. United States Courthouse Complex,One Church Street, Montgomery, AL; (2) the Clerk isdirected to provide a court reporter for thisproceeding. Signed by Judge Vanzetta P. McPherson on4/15/05. (sl,) (Entered: 04/15/2005)
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04/21/2005 *282 RESPONSE in Oppositionre 275 MOTION for Order re Injunctive Relief filed byAll Plaintiffs. (Attachments: # 1 Exhibit 1# 2 Exhibit2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6#7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit10)(Byrne, David) (Entered: 04/21/2005)
04/22/2005 *284 Minute Entry forproceedings held before Judge Vanzetta P. McPherson:Oral Argument on Post Trial M/to Compel held on4/22/2005. (Recording Time 11:05 a.m.-12:07 p.m.) (sl,)(Entered: 04/22/2005)
5/17/2005 *288 ORDERED that the 273Motion to Compel Post Trial Discovery is GRANTED inpart and DENIED in part as further set out in order.The defendants shall produce Wu and Lee for depositionsat a mutually convenient time and location. Subject toextenuating circumstances, such as illness, Wu'sdeposition shall take place within the United States.Signed by Judge Vanzetta P. McPherson on 5/17/05. (sl,)(Entered: 05/17/2005)
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07/01/2005 *293 BRIEF/MEMORANDUM inSupport OF PLAINTIFFS' MOTION TO SUPPLEMENT THETRIAL COURT RECORD WITH EVIDENCE WRONGFULLY WITHHELD BYDEFENDANTS FROM PRETRIAL DISCOVERY filed by AllPlaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11Exhibit K# 12 Exhibit L # 13 Exhibit M# 14 Exhibit N#15 Exhibit O# 16 Exhibit P# 17 Exhibit Q# 18 Exhibit R#19 Exhibit S# 20 Exhibit T# 21 Exhibit U# 22 Exhibit V#23 Exhibit W # 24 Exhibit X# 25 Exhibit Y)(Byrne,David) Modified on 7/5/2005 to create relation tomotion filed 7/1/05 contained within this pleading(qc/djy,). (Entered: 07/01/2005)
07/01/2005 * MOTION to supplement thetrial court record with evidence wrongfully withheld bydefendants from pretrial discovery by All Plaintiffs(NO PDF document attached to this notice-See DocketEntry 293). (djy,) (Entered: 07/05/2005)
07/06/2005 *297 ORDERED as follows:(1) on or before 7/15/05, plaintiffs must file amemorandum or brief citing the specific legal authorityfor the relief requested in their 293 Motion toSupplement the Trial Court Record with EvidenceWrongfully Withheld by Defendants from PretrialDiscovery; (2) on or before 7/25/05, defendants mustshow cause why the 293 Motion should not be granted;(3) on or before 7/29/05, plaintiffs may file a replybrief; (4) plaintiffs' 293 Motion is set for ahearing on 8/8/2005 at 9:00 AM in Courtroom 2A of theUnited States District Courthouse in Montgomery, AL;(5) Anthony Ching and Juan D. Rodriguez are ORDERED tobe present for the 8/8/05 hearing in Montgomery, AL.Signed by Judge Mark E. Fuller on 7/6/05. (sl,)(Entered: 07/06/2005)
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07/13/2005 *298 ORDER continuingHearing on MOTION to supplement the trial court recordwith evidence wrongfully withheld by defendants frompretrial discovery: Motion Hearing reset from 8/8/2005@ 9:00 am to 8/18/2005 10:00 AM in Courtroom 2A beforeHon. Chief Judge Mark E. Fuller, USC, Montgomery, AL..Signed by Judge Mark E. Fuller on 7/13/05. Furnished toYG, HC & KG.(djy,) (Entered: 07/13/2005)
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07/15/2005 *299 BRIEF/MEMORANDUM inSupport re 293 MOTION TO SUPPLEMENT THE TRIAL COURTRECORD WITH EVIDENCE WRONGFULLY WITHHELD BY DEFENDANTSFROM PRETRIAL DISCOVERY filed by All Plaintiffs.(Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3#4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11#12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18 # 19Exhibit 19)(Byrne, David) (Entered: 07/15/2005)
07/21/2005 *300 MOTION to Modify re297 Order Setting Hearing on Motion, Set Deadlines byContinental Carbon Incorporated, China Synthetic RubberCorporation. (vmc,) (Entered: 07/22/2005)
07/22/2005 *301 ORDER granting 300MOTION to Modify Scheduling Order; Defendants'Response to Motion due by 8/1/2005 for MOTION tosupplement the trial court record; plaintiff may file aresponse on or before 8/8/2005. Signed by Judge Mark E.Fuller on 7/22/2005. (cc,) (Entered: 07/22/2005)
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08/01/2005 *302 RESPONSE in Oppositionto plaintiffs' 268 MOTION to Supplement the TrialRecord filed by Continental Carbon Incorporated, ChinaSynthetic Rubber Corporation. (sl,) (Entered:08/02/2005)
8/18/2005 *304 Minute Entry forproceedings held before Judge Mark E. Fuller: MotionHearing held on 8/18/2005 re MOTION to supplement thetrial court record with evidence wrongfully withheld bydefendants from pretrial discovery filed by AllPlaintiffs,. (Court Reporter James R. Dickens.) (kcg,)(Entered: 08/18/2005)
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08/18/2005 *305 Minute Entry forproceedings held before Judge Mark E. Fuller: In CameraHearing held and maintained UNDER SEAL on 8/18/2005.[Minutes, Exhibits and Witness List maintained withcourt file in SEAL ENVELOPE] (No PDF Attached) (CourtReporter James R. Dickens.) (kcg,) (Entered:08/18/2005)
08/19/2005 *306 ORDER denying 293Motion to Supplement the Trial Court Record withEvidence Wrongfully Withheld by defendants fromPretrial Discovery to the extent that it seeks anyrelief other than an award of monetary sanctions. Tothe extent that plaintiffs' Motion to Supplementthe Trial Court Record with Evidence WrongfullyWithheld by defendants from Pretrial Discovery seeks anaward of monetary sanctions, this matter is referred toMagistrate Judge McPherson for a ruling on this matteras it is in essence a ruling relating to discovery. Theparties are advised that Magistrate Judge McPherson mayor may not wish them to provide further writtenargument or to appear at another hearing on the matterbut will leave such matters within her sounddiscretion. Signed by Judge Mark E. Fuller on 8/19/05.(sl,) (Entered: 08/19/2005)
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09/09/2005 *307 ORDERED as follows:(1) on or before 9/16/05, the plaintiff are directed tofile a supplemental motion for sanctions pursuant toRule 37 of the FRCP, which shall include, but shall notbe limited to, (a) a request for a definite sum; (b) anitemization of the attorney fees incurred in making themotion; and (c) an itemization of the reasonableexpenses incurred in making the motion; (2) on orbefore 9/30/05, the defendants shall file theirresponse to the motion for monetary sanctions and theirbrief in support of their response. Signed by JudgeVanzetta P. McPherson on 9/9/05. (sl,) (Entered:09/09/2005)
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09/16/2005 *308 Supplemental MOTIONfor Sanctions and Submission Pursuant to MagistrateJudge McPherson's Order of September 9, 2005 by AllPlaintiffs. (Attachments: # 1 Exhibit A-1# 2 ExhibitA-2# 3 Exhibit A-3)(Friedman, Jeffrey) (Entered:09/16/2005)
09/16/2005 * TRANSCRIPT of OralArgument on Motion to Supplement Trial Court Record andFor Sanctions held on 8/18/05 before Judge Mark E.Fuller. Court Reporter: James R. Dickens. (sl,)(Entered: 09/19/2005)
09/30/2005 *313 ORDER setting StatusConference for 10/3/2005 at 11:00 AM by conference callarranged by counsel for the plaintiff. Signed by JudgeMark E. Fuller on 9/30/05. (sl,) (Entered:09/30/2005)
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09/30/2005 *314 BRIEF/MEMORANDUM inOpposition To Plaintiffs 308 Supplemental Motion forSanctions filed by All Defendants. (Fruin, Peter)(Entered: 09/30/2005)
10/03/2005 * Minute Entry forproceedings held before Judge Mark E. Fuller: TelephoneStatus Conference held on 10/3/2005. (no pdf isattached) (kcg,) (Entered: 11/09/2005)
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10/06/2005 *316 ORDER that on orbefore 21 October 2005, the plaintiff shall file withthe Clerk of the court 19 individualized analyticalcharts, labeled Chart A through Chart S, to coincidewith Exhibits A through S, appended to the Motion ToSupplement The Trial Court Record (293-1), as set out;that on or before 4 November 2005, the defendants shallfile with the Clerk of the court a Notice RegardingWithheld Documents, as set out; that a Motion Hearingis set for 11/10/2005 09:00 AM in Courtroom 5A beforeHonorable Vanzetta P. McPherson on Motion forSanctions. Signed by Judge Vanzetta P. McPherson on10/6/2005. (cc,) (Entered: 10/06/2005)
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10/24/2005 *317 Response to Order316re 293 BRIEF/MEMORANDUM in Support,, Plaintiffs'Motion to Supplement the Trial Court Record withEvidence Wrongfully Withheld By Defendants fromPretrial Discovery by The City of Columbus, Ga, OwenDitchfield, Action Marine, Inc., John Tharpe.(Attachments: # 1 Supplement Chart A# 2 SupplementChart B# 3 Supplement Chart C# 4 Supplement Chart D# 5Supplement Chart E# 6 Supplement Chart F# 7 SupplementChart G# 8 Supplement Chart H# 9 Supplement Chart I# 10Supplement Chart J# 11 Supplement Chart K# 12Supplement Chart L# 13 Supplement Chart M # 14Supplement Chart N# 15 Supplement Chart O# 16Supplement Chart P# 17 Supplement Chart Q# 18 ExhibitChart R# 19 Supplement Chart S)(Byrne, David) Modifiedon 10/24/2005 to create a docket relationship to 316Order(sl,). (Entered: 10/24/2005)
11/04/2005 *318 Evidentiary Submissionin Compliance with This Court's Order of October 6,2005 filed by Continental Carbon Incorporated. (Brady,Clifford) (Entered: 11/04/2005)
11/10/2005 *319 Minute Entry forproceedings held before Judge Vanzetta P. McPherson:Motion Hearing held on 11/10/2005 re 308 SupplementalMOTION for Sanctions and Submission Pursuant toMagistrate Judge McPherson's Order of September 9,2005 filed by All Plaintiffs. (Court Reporter RisaEntrekin.) (Attachments: # 1 Exhibit List) (war)(Entered: 11/14/2005)
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11/10/2005 * NOTICE of Correction:Exhibit List attached to Minutes of Motion forSanctions Hearing held on 11/10/05 was inadvertentlylisted as Defendants' Exhibit List; Document shouldindicate Plaintiff's Exhibit List (NO PDF ATTACHED)(war) (Entered: 11/21/2005)
11/21/2005 *320 RESPONSE to Motion re308 Supplemental MOTION for Sanctions and SubmissionPursuant to Magistrate Judge McPherson's Order ofSeptember 9, 2005, MOTION to supplement the trial courtrecord with evidence wrongfully withheld by defendantsfrom pretrial discovery filed by All Defendants.(Brady, Clifford) (Entered: 11/21/2005)
11/22/2005 *321 MOTION for Extensionof Time to File Response/Reply by All Plaintiffs.(Friedman, Jeffrey) (Entered: 11/22/2005)
11/22/2005 *322 Response to OrderPlaintiffs' Supplemental Submission Pursuant toMagistrate Judge McPherson's Instruction ofNovember 10, 2005 by All Plaintiffs. (Attachments: # 1Exhibit A# 2 Exhibit B# 3 Exhibit C)(Friedman, Jeffrey)(Entered: 11/22/2005)
01/31/2006 * MOTIONS 308 SupplementalMOTION for Sanctions and Submission Pursuant toMagistrate Judge McPherson's Order of September 9,2005, 321 MOTION for Extension of Time to FileResponse/Reply REFERRED to Judge Judge McPherson. (sl,)(Entered: 01/31/2006)
02/07/2006 *324 ORDER grantingplaintiffs' 321 Motion to File Response out ofTime. Signed by Judge Vanzetta P. McPherson on 2/7/06.(sl,)11 (Entered: 02/07/2006)
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04/04/2006 * TRANSCRIPT filed ofDiscovery Hearing held 8/6/04 before Judge VanzettaMcPherson, re 06-11311-D, 326 Notice of Appeal, 325Notice of Appeal Court Reporter: James Dickens. (ydw,)(Entered: 04/05/2006)
10/11/2006 *345 [VACATED PURSUANT TO347 ORDER FILED 11/28/06] ORDER denying 308 Motion forSanctions as further set out in order. Signed by JudgeVanzetta P. McPherson on 10/11/06. (sl,) Modified on11/28/2006 (sl,). (Entered: 10/11/2006)
10/20/2006 *346 Objection to re 345Order on Motion for Sanctions and Motion to Reconsiderfiled by The City of Columbus, Ga, Owen Ditchfield,Action Marine, Inc., John Tharpe. (Byrne, David)(Entered: 10/20/2006)
10/20/2006 * MOTION to Reconsider re345 Order. (This document has no pdf attached. See 346for pdf.) (sl,) (Entered: 10/23/2006)
11/28/2006 *347 ORDERED as follows:(1) the 345 Order filed 10/11/06 is VACATED; (2) allissues relating to the appropriateness of monetarysanctions against defendants raised by plaintiffs'293 308 and [308-1] motions and all submissions insupport of plaintiffs' request for monetarysactions as a penalty for alleged discovery violationsare hereby referred to United States Magistrate JudgeWallace Capel, Jr. Signed by Judge Mark E. Fuller on11/28/06. (sl,) (Entered: 11/28/2006)
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11/28/2006 ***Reopen Document 308Supplemental MOTION for Sanctions (PURSUANT TO 347ORDER) (sl,) (Entered: 11/28/2006)
11/28/2006 *MOTIONS 308 SupplementalMOTION for Sanctions and Submission Pursuant toMagistrate Judge McPherson's Order of September 9,2005 REFERRED to Judge Judge Capel. (sl,) (Entered:11/28/2006)
11/28/2006 *Judge Wallace Capel, Jradded to case due to the retirement of Judge Vanzetta PMcPherson who is no longer assigned to case andpursuant to 347 Order. (cc,) (Entered:11/29/2006)
12/04/2006 *348 ORDERED: (1) theparties shall be available for a telephone conferencecall on 1/5/07 at 10:00 a.m. to be arranged by counselfor the defendants; (2) the parties shall appear for ahearing on 1/22/07 at 10:00 a.m. in Courtroom 5A,Montgomery, AL; and the Clerk is directed to provide acourt reporter for this hearing. Signed by JudgeWallace Capel Jr. on 12/4/06. (sl,)
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12/04/2006 *Set Telephone Conferencefor 1/5/2007 at 10:00 AM before Honorable Wallace CapelJr. pursuant to 348 Order. (sl,) (Entered:12/04/2006)
12/05/2006 *349 TRANSCRIPT ofProceedings re: Motion Hearing (PDF available for courtuse only) held on November 10, 2005 before JudgeVanzetta Penn McPherson. Court Reporter: Risa L.Entrekin. (sl,) (Entered: 12/06/2006) 12/06/2006 *350MOTION for Reconsideration re 347 Order,, TerminateMotions, Vacating Magistrate Judge's Order DenyingMonetary Sanctions by All Defendants. (Attachments: # 1Exhibit Exhibit A-Declaration of Peter S. Fruin# 2Exhibit Exhibit B-Transcript)(Fruin, Peter) (Entered:12/06/2006)
12/18/2006 *351 ORDER denying 350Motion for Reconsideration as further set out. Signedby Judge Mark E. Fuller on 12/18/2006. (cb,) (Entered:12/18/2006)
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01/05/2007 *352 Minute Entry forproceedings held before Judge Wallace Capel Jr.:Telephone Conference held on 1/5/2007. (Court ReporterJimmy Dickens.) (war,) (Entered: 01/05/2007)
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01/05/2007 *353 ORDERED that thehearing set for 1/22/07 is CANCELLED. The parties shallfile a detailed statement of costs within five day andany objections should be filed within five daysthereafter. The court will consider no other documentsafter that point. Signed by Judge Wallace Capel Jr. on1/5/07. (sl,) (Entered: 01/05/2007)
01/05/2007 ***Hearing set for 1/22/07cancelled pursuant to 353 Order entered on 1/7/07.(sl,) (Entered: 01/05/2007)
01/12/2007 *354 Evidentiary Submissionre 353 Order,, Terminate Deadlines and Hearings,Plaintiffs' Statement of Costs Related to TheirMotion for Sanctions filed by The City of Columbus, Ga,Owen Ditchfield, Action Marine, Inc., John Tharpe.(Attachments: # 1 Exhibit A (Plaintiffs' CounselTime Records)) (Byrne, David) (Entered:01/12/2007)
01/22/2007 *356 Objection to re 354Evidentiary Submission, and Statement of Costs filed byAll Defendants. (Fruin, Peter) (Entered:01/22/2007)
02/05/2007 *357 MOTION for Leave toFile Amended Statement of Costs and to File a Responseto Defendants' Objections to Plaintiffs'Statement of Costs by The City of Columbus, Ga, OwenDitchfield, Action Marine, Inc., John Tharpe.(Attachments: # 1 Exhibit A to Motion forLeave)(Friedman, Jeffrey) (Entered: 02/05/2007)
02/05/2007 *358 ORDER granting 357Motion for Leave to File amended Statement of Costs andto File a Response to defendants' Objections toplaintiffs' Statement of Costs. The Clerk isdirected to file Exhibit A attached to document 357 asa separate document entry in the court record. Signedby Judge Wallace Capel Jr. on 2/5/07. (sl,) (Entered:02/05/2007)
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02/05/2007 *359 RESPONSE todefendants' 356 Objection to plaintiffs'Statement of Costs by Plaintiffs (pursuant to 358Order). (sl,) (Entered: 02/05/2007)
07/12/07 Report and Recommendation ofthe Magistrate Judge
42.00
Total Judge and chambers times
100.00
Total Court Reporter time
10.50
Dated June 13, 2007.
Total Courtroom deputy time
10.50