Opinion
No. 99-4159-SAC.
November 2000.
MEMORANDUM AND ORDER
This case is before the court on the motion of plaintiff, Darline Adams, (Dk. 101) to review three orders of the magistrate filed August 25, 2000, relating to discovery issues and sanctions. (Dks. 96, 97 98).
As to nondispositive pretrial matters, the district court reviews the magistrate judge's order under a clearly erroneous or contrary to the law standard. 28 U.S.C. § 636(b)(1)(A); Continental Bank, N.A. v. Caton, 136 F.R.D. 691, 693 (D.Kan. 1991). "The clearly erroneous standard requires the district court to affirm the magistrate judge's order unless it has the definite and firm conviction from all the evidence that error has occurred. (citations omitted)." Id.
I. Docket 96
In this order, the magistrate found that plaintiff's disclosures regarding her expert medical witness, Dr. Logan, did not comply with Fed.R.Civ.P. 26(a)(2)(B), and that the defects in the disclosures were neither substantially justified by the plaintiff nor harmless to the defendant. Accordingly, the magistrate ordered the plaintiff's counsel to remedy the defects, to bear the expense of Dr. Logan's deposition by the defendant, and to reimburse defendant for defendant's reasonable attorneys' fees and copying expenses in connection with their filing and briefing of the motion regarding the inadequate disclosures.
Plaintiff's counsel has given notice that she has now updated Dr. Logan's report in accordance with the magistrate's requirements. See Dk. 103.
Plaintiff contends that these sanctions were imposed in error, but does not dispute the finding that the expert report was not in compliance with the rules. Instead, plaintiff alleges that because her actions were not shown to have multiplied the proceedings or to have been vexatious and unreasonable, no sanction could properly be imposed, citing Phillips USA, Inc. v. Allflex USA, Inc., 878 F. Supp. 175 (D.Kan. 1995). Plaintiff further alleges that because her failings were not intentional or in reckless disregard of her duties to the court, sanctions were inappropriate, citing Starlight Intern., Inc. v. Herlihy, 186 F.R.D. 626 (D.Kan. 1999).
Plaintiff's counsel anticipates that such sanctions, coupled with those assessed in Dk. 98, will be in excess of $7,000. (Dk. 102, p. 1). Defendant's counsel offers a lower figure.
Plaintiff seeks to impose a higher standard for imposition of sanctions than required by Rule 37. Although sanctions are proper under 28 U.S.C. § 1927 only where an attorney's conduct multiplies the proceedings and are vexatious and unreasonable, see Phillips USA, Inc.; Starlight Intern., Inc., sanctions are proper under Fed.R.Civ.P. 37 where attorney misconduct is not substantially justified. See United States v. A P Arora, Ltd., 1993 WL 461914, at *2 (D.Kan. Oct. 29, 1993), aff'd, 46 F.3d 1152 (10th Cir. 1995). The sanctions imposed in the present case were pursuant to Rule 37, and not Section 1927. See Dk. 96, p. 2; Dk. 98, p. 3). Accordingly, the court will review the findings made by the magistrate to determine whether the acts or failings were substantially justified, and whether the magistrate abused his discretion in determining that sanctions were appropriate.
Among the failings noted by the judge were that despite the fact plaintiff had received a one month extension to designate her expert, she submitted an expert report that was three years old, and which failed to include any publications from the expert since July 1996 or his recent testimony in other cases. The court noted that one of the purposes of the 1993 amendments to Rule 26 was to enable a party, upon receipt of a proper report, to make an economic judgment call whether a deposition is necessary, or whether the information in the report would suffice instead. The magistrate concluded that because of the manner in which the expert disclosure had been made, defendants had no choice but to depose the expert, and that deposition would take much longer than if a proper expert report had been served.
Although the defects noted by the magistrate have now been remedied, the magistrate additionally expressed concern that the defective disclosures were a result of counsel's "chronic disorganization and sloppiness" "which, if not dealt with by the court in some way, will seriously prejudice defendant by unnecessarily driving up its attorneys' fees in connection with preparing for trial." (Dk. 96, ¶¶ 3, 4). He additionally noted that counsel "seems oblivious to procedural technicalities and the rationale for same." (Id., p. 4).
The order clearly reflects the magistrate's conviction that unless he imposed sanctions, counsel would persist in similar discovery abuses, increasing the cost of the case for defendant, and the number of issues needing judicial intervention by the magistrate. The court is cognizant that the magistrate has had extensive dealings with plaintiff's counsel in this and other cases, and does not find that his decision regarding sanctions constitutes an abuse of discretion.
II. Docket 97
In this order, the magistrate examined the plaintiff's motion challenging the sufficiency of defendant's response to her first request for production of documents and first set of interrogatories. The court denied plaintiff's motion to compel in every respect. Plaintiff claims that it was error for the magistrate to deny plaintiff a response from defendants to her contention interrogatory, while granting defendant a detailed response to a similar contention interrogatory. The court has reviewed the discovery at issue, and does not find the contention interrogatories, or the circumstances surrounding them, sufficiently similar as to require an identical ruling from the magistrate.
Plaintiff additionally relies upon " Reeves" (sic), (Dk. 102, p. 5), in contending that defendant should have been compelled to answer certain other interrogatories. Although neither party has properly summarized the legal impact of Reeves, the court finds that the case does not alter the conclusion reached by the magistrate. The court was well aware of Reeves before it issued its order, but did not find then, and does not find now, that it controls the analysis of any issue before this court. Reeves held that an employment discrimination plaintiff's prima facie case, combined with sufficient evidence to find that employer's asserted justification is false, may permit trier of fact to conclude that the employer unlawfully discriminated, although such a showing by plaintiff will not always be adequate to sustain jury's finding of liability. 120 S.Ct. 2097, headnote 78 (regarding age discrimination).
Plaintiff apparently intends to refer to Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000).
Although every Supreme Court case is significant, and Reeves did abrogate holdings of some circuits, Reeves does not constitutes a significant change in the manner in which the Tenth Circuit, and therefore this court, has traditionally applied McDonnell Douglas and the pretext analysis. Long before plaintiff's case was decided, the Tenth Circuit held that if a plaintiff "presents evidence that the defendant's proffered reason for the employment decision was pretextual — i.e. unworthy of belief, the plaintiff can withstand a summary judgment motion and is entitled to go to trial." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Contrary to plaintiff's assertions, Reeves did not create any new right to conduct discovery, or broaden the scope of relevant evidence. No abuse of discretion has been shown in the rulings reached by the magistrate regarding plaintiff's motion to compel.
III. Docket 98
In this order, the magistrate ruled on defendant's motion for sanctions against the plaintiff, based on her failure to comply with an earlier order regarding certain interrogatory answers. The magistrate found that "despite having been granted five extensions of time, and despite two prior orders directing plaintiff to submit complete and accurate interrogatory answers in preparation for giving her deposition, plaintiff failed to do so." (Dk. 98, p. 1). The magistrate specifically found that this failure was "largely, if not entirely, attributable to plaintiff's lead counsel," and explained in detail the facts supporting that conclusion.
The magistrate then found that the failure to submit complete and accurate interrogatory answers in preparation for plaintiff's deposition caused her deposition to be substantially longer than it otherwise would have been, and that sanctions should be imposed against plaintiff's counsel. The magistrate then imposed a sanction, ordering plaintiff's counsel to reimburse defendant for 100% of the costs associated with the court reporter's attendance at the deposition, and the cost of the original transcript of the same. (Dk. 98, p. 4). The magistrate noted that it believed such a sanction to be conservative, as he was inclined to require plaintiff's counsel to pay 50% of the court reporting expenses incurred at that deposition, plus 50% of defense counsel's reasonable attorneys' fees, which would likely have been an amount greater than the sanction actually imposed.
Plaintiff does not challenge the facts that she had not read the final interrogatory answers prior to signing them and sending them to defense counsel, that some of the changes agreed upon by plaintiff and her counsel were not incorporated into the answers served on defendant, or that some answers which were included were incorrect or incomplete.
As above, plaintiff alleges that because her actions were not shown to have multiplied the proceedings or to have been vexatious and unreasonable, or to have been intentional or in reckless disregard of her duties to the court, no sanction could properly be imposed. For the reasons set forth above regarding Dk. 96, plaintiff's claim of error is unpersuasive.
Plaintiff additionally alleges that the amount of the sanction is burdensome, given the fact that this is a contingency fee case, in stating that if the court affirms sanctions "of this large amount in relationship to the type of errors the Magistrate found, plaintiffs will have difficulty obtaining attorneys willing to take the risk of imposition of large monetary sanctions." (Dk. 102, p. 4).
Sanctions are not to be greater than the amount "reasonably necessary to deter the wrongdoer." White v. General Motors Corp. Inc., 908 F.2d 675, 685 (10th Cir. 1990). This court has not had to deal with counsel routinely and repeatedly, as has the magistrate. Although the sanction is not minimal, the court credits the magistrate's judgment that lesser sanctions would not have accomplished their stated purpose of compensating the defendant for their acts necessitated by plaintiff's failings, and of deterring the plaintiff from similar lack of adherence to the rules in the future.
Underlying the magistrate's order is his concern that this plaintiff receive competent, diligent, and adequate legal representation. Counsel's concern that attorneys will be unwilling to take on these types of cases if large sanctions are imposed is unfounded. These sanctions are unrelated to the nature of the case or the manner in which attorneys are paid. Sanctions for discovery defects can easily be avoided by counsel's own rigorous and repeated compliance with the rules of procedure which govern the practice of law in this district.
IT IS THEREFORE ORDERED THAT the plaintiff's objection to the magistrate's orders and motion for review (Dk. 101) is denied, and that the magistrate's orders (Dk. 96, 97, 98) are affirmed.