Opinion
Civil No. 03-2465 (JRT/FLN)
November 26, 2003
Sue B. Stingley and Martin B. Ho, STINGLEY HO, Minneapolis, MN, for plaintiff
Mary E. Stumo and Angela M. Crandall, FAEGRE BENSON, Minneapolis, MN, for defendant
ORDER DENYING DEFENDANT'S REQUEST FOR DISMISSAL AS A SANCTION
Defendant requests that the Court dismiss this lawsuit, alleging that plaintiff has abused the judicial process by committing perjury and providing false and incomplete responses during the discovery process. For the reasons discussed below, defendant's motion is denied.
BACKGROUND
This dispute arises out of allegations of sexual harassment and assault, that plaintiff allegedly suffered while an employee at McDonald's. The parties agreed to an expedited pre-answer discovery process. As part of the expedited process, plaintiff attempted to provide defendant with access to all of her medical records, and provided defendant with numerous medical releases, including signed, blank medical releases. Plaintiff also agreed to participate in a deposition. Plaintiffs deposition was taken on the morning of May 23, 2003. Plaintiff characterizes this as a partial deposition, and claims that both parties anticipated the deposition would reconvene if the case was not resolved at a mediation that was scheduled to take place shortly after the partial deposition. Plaintiff did not sign her deposition, and did not have an opportunity to review it.At the deposition, plaintiff was asked whether she had ever made certain accusations against police officers. Although plaintiff answered she had not made such allegations, defendant had reason to disbelieve plaintiffs answer. Defendant subsequently subpoenaed records from an Illinois police department confirming that plaintiff had, in fact, made such accusations. In the meantime, plaintiff claims that shortly after this partial deposition, she realized that her answer had been mistaken, and she and her attorneys decided to correct the answer at the previously scheduled mediation. Plaintiff has submitted an affidavit explaining her position, including her rationale for the misstatement.
ANALYSIS
This Court has inherent authority to dismiss a lawsuit as a sanction for significant abuse of the judicial process. See, e.g., Martin v. DaimlerChrysler Corp., 251 F.3d 691, 694 (8th Cir. 2001) (holding that "[w]hen a litigant's conduct abuses the judicial process, dismissal of a lawsuit is a remedy within the inherent power of the court."). See also Knapp v. Convergys Corp., 209 F.R.D. 439, 442 (E.D. Mo. 2003) (noting that the court's authority to sanction parties for discovery abuse flows from its inherent power to manage its own affairs so as to achieve the orderly and expeditious disposition of cases, including fashioning an appropriate sanction for conduct which abuses the judicial process) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (additional citation omitted)).Dismissal, however, is an extreme sanction, and, as the Eighth Circuit repeatedly notes, should be used sparingly. Martin, 251 F.3d at 693 (upholding sanction of dismissal, but noting that "`[i]n our system of justice the opportunity to be heard is a litigant's most precious right and should be sparingly denied'") (citing Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999) (quoting Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977)). In addition, before imposing the sanction of dismissal, fairness requires the Court to consider whether a lesser sanction is available or appropriate. Keefer v. Provident Life and Ace. Ins. Co., 238 F.3d 937, 940 (8th Cir. 2000) (upholding dismissal as sanction for discovery abuse). A court should not use dismissal as a sanction unless the court is able to find, by clear and convincing evidence, both (1) that the misconduct occurred, and (2) that a lesser sanction would not sufficiently punish and deter the abusive conduct.
On the record before the Court, it is clear that plaintiff provided an inaccurate response to defendant's deposition question. It is also clear, however, that plaintiff attempted to correct this inaccurate response. While it likely would have been preferable for plaintiff or her attorney to contact defendant immediately upon the realization that she had testified incorrectly in her deposition, she eventually corrected the misstatement. Plaintiffs behavior here is unlike that of plaintiffs in which courts have found dismissal warranted due to patterns of abuse, or continual misrepresentations. See e.g., Martin, 251 F.3d at 695 (noting that the district court made specific findings that plaintiff provided perjurious responses in both interrogatories and depositions); Carey, 186 F.3d at 1016 (affirming entry of default against defendants based upon a finding of egregious conduct by defendants, including repeated lies during the discovery process).
The Court also notes the unique procedural position of this dispute. At the time of the alleged misconduct, the parties were engaged in voluntary pre-answer negotiations. This instance is unlike those in which a party waits until the eve of trial to correct errors in depositions and interrogatories. See, e.g., Knapp, 209 F.R.D. at 443 n. 2 (noting that defendant became aware of the perjury shortly before trial by way of an anonymous tip, further noting that the deadline for discovery had passed, the ready for trial date had passed, and the court would not reopen discovery). In this instance, the Court would not be forced to "re-open" discovery to remedy any potential prejudice to defendant.
Further, the Court cannot find, on the record before it, that plaintiff interfered with the judicial process by failing to inform defendant of medical providers. Indeed, from the record currently before the Court, it appears that plaintiff gave defendant broad authority to obtain medical documents from all providers known to plaintiff. That she might have failed to remember a particular provider was apparently anticipated by the parties, because plaintiff gave defendant a blank, signed authorization to obtain addition medical records. The Court finds that no sanction is appropriate for this alleged misconduct.
For these reasons, the Court does not find that by plaintiffs actions, she abused the judicial process so as to warrant the severe sanction of dismissal. However, if any such similar behavior by plaintiff occurs in this case, the Court will consider imposing a monetary sanction as a remedy.
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS ORDERED that defendant's motion to dismiss [Docket No. 9] is DENIED.