Opinion
Jason Saul Remer, Brody Max Shulman, Remer & Georges-Pierre, PLLC, Omar Ibrahem, Omar Ibrahem, P.A., Miami, FL, for Plaintiff.
Sherril May Colombo, Lindsay Marie Alter, Littler Mendelsohn, P.C., Miami, FL, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS
Jonathan Goodman, United States Magistrate J.
In this employment discrimination case, which was removed from the Miami-Dade County Circuit Court on diversity of citizenship grounds, Plaintiff Anthony King filed a Motion for Discovery Sanctions. [ECF No. 63]. United States District Judge Jose E. Martinez referred all discovery motions, including those seeking sanctions, to the Undersigned. [ECF No. 17]. Defendant Akima Global Services, LLC filed an opposition response. [ECF No. 70]. King did not file a reply and the time to do so has expired. He did, however, later file a " Motion to Submit Proposed Orders." [ECF No. 76]. In that November 22, 2017 motion, which Akima opposes, King asked for leave for the parties to submit proposed orders on several pending motions, including the sanctions motion. The motion for leave to file proposed orders is pending.
Using the time computation protocol established by Local Rule 7.1(c)(1)(A), King’s reply to Akima’s November 13, 2017 response (filed on CM/ECF) was due on November 20, 2017.
For the reasons outlined in greater detail below, the Undersigned grants in part and denies in part the sanctions motion.
FACTUAL BACKGROUND
King is Muslim, black, and an American. He was a detention officer for Doyon-Akal JV, the contractor who ran the Krome Detention facility. In May 2014, Akima was awarded the Krome contract. King applied to work for Akima. He was not hired. King contends that other non-Muslim, non-black, and non-American Doyon detention officers were hired, despite having worse disciplinary and performance records than him. King asserted claims, in three counts, under the Florida Civil Rights Act of 1992. In its Answer, Akima asserted, as an affirmative defense, that all of its actions concerning King were taken for lawful, legitimate and/or non-retaliatory business reasons.
King’s Discovery Misconduct Allegations
In his motion for discovery sanctions, King asserts five categories of alleged violations, including failure to: (1) timely disclose fact witnesses; (2) implement a litigation hold and to search for relevant documents; (3) produce any emails concerning King; (4) provide a Federal Rule of Civil Procedure 30(b)(6) witness for the topic of " all steps taken by Defendant to search for, collect, identify, produce or withhold documents[; ]" and (5) correctly designate a witness with knowledge. [ECF No. 63, pp. 2-5].
In its August 3, 2017 Rule 26 Initial Disclosures, Akima listed only three persons as " likely to have discoverable information that Defendant may use to support its defenses:" Karen Sinanan, Mike Burklow, and Antinese Beard. [ECF No. 63-1, pp. 2-3]. On that same day, in unsworn amended interrogatory answers, Akima named those three witnesses and five other persons (King, Laura Mitchell, Michelle Jones, Terry Nelson, and Virginia Blasco) as persons " with knowledge of facts or information that relate to Plaintiff’s claims for race discrimination, religious discrimination, and national origin discrimination[.]" [ECF No. 63-2, pp. 3-5]. Akima identified Sinanan as the " Human Resources Manager with AGS" and stated " that she may have knowledge regarding Mr. King’s application for employment, the factors considered by AGS in making employment offers to applicants at the Krome facility, and policies and procedures relevant to this case." [ECF No. 63-2, p. 3 (emphasis added) ].
" AGS" refers to Defendant Akima Global Services, LLC.
In those same unsworn interrogatory answers, Akima gave the following substantive response to Interrogatory 10, which asked for all " facts, reasons or circumstances that led to Plaintiff not being retained by Defendant after Plaintiff’s interview:"
[D]uring Plaintiffs interview he stated that [he] had not received any corrective action from his former employer, Doyon; however, according to information received from then Doyon supervisors (including Antinise Beard whom AGS hired as its Assistant Project Manager) and AGS’ government customer, Plaintiff received performance and conduct based warnings and corrective actions including, but not limited to, incorrect detainee counts and workplace harassment. In addition, according to information received from then Doyon supervisors and AGS’ government customer was that Plaintiff was generally difficult to work with and not a team player. Based on the adverse information obtained regarding Plaintiff’s work performance and conduct, and based on the false statements Plaintiff made during his interview, AGS’ President (Laura Mitchell) made the decision that AGS would not make Plaintiff an employment offer.
This interrogatory also asked Akima to include the names of all individuals involved in the decision to not " retain" King. [ECF No. 63-2, p. 6].
[ECF No. 63-2, p. 6].
Approximately two months later, at Akima’s October 5, 2017 Rule 30(b)(6) deposition, Mitchell identified several more persons she spoke to about deciding to not hire King: Joel Michaelson (of DHS/ICE) and Gerard Jones, a union representative. [ECF No. 63-3, p. 6]. According to Mitchell’s deposition testimony, these two individuals gave negative feedback about King. [ECF No. 63-3, pp. 8-12]. Moreover, Mitchell’s deposition testimony also mentioned two additional persons, Terry Nelson and Wendell Schingler, about what they had heard about King. [ECF No. 63-3, p. 7].
King describes this procedural history as evidence of discovery abuse. He notes that Akima never mentioned Michaelson, Jones or Schingler in its interrogatory answers or in its October 5, 2017 Amended Initial Disclosures. [ECF Nos. 63-2; 63-4].
King notes that Akima then filed a summary judgment motion in which it relied on the statements attributed to Michaelson and Jones as providing a purportedly legitimate, non-discriminatory reason for not hiring King.
Concerning Akima’s alleged failure to produce in discovery any emails concerning King, he contends that one of Akima’s main custodians never looked for emails. King also notes that he has produced two emails that Akima sent to the EEOC in response to his charge of discrimination, and yet Akima never produced these emails in discovery and had no explanation for its failure to do so. He also notes that Akima never listed any emails on a privilege log.
At the Rule 30(b)(6) deposition, Akima objected to questions about whether the witness gathered documents for the lawsuit. [ECF No. 63-3, p. 29].
King’s discovery sanctions motion also targets Sinanan’s deposition testimony. Specifically, she testified that she had no knowledge about King’s application and why he was not hired. [ECF No. 63-7, p. 8]. The motion also highlights the deposition testimony of Burklow, who testified that he did not know anything about the factors which Akima used to make employment offers and that he simply interviewed King. [ECF No. 63-5, p. 9]. At bottom, King’s complaint here is that Akima, in effect, exaggerated the knowledge of these two witnesses because the interrogatory answers said they " may" have knowledge about more-relevant issues.
King alleges that these discovery failings have unduly prejudiced him. He argues that he would have interviewed or taken the depositions of the witnesses which Akima never timely disclosed so that he could have learned about the alleged central role they played. But he " now faces a case ending summary judgment motion based on what those undisclosed witnesses said." [ECF No. 63, p. 7].
King wants this Court to strike Akima’s pleadings. Recognizing that courts are " hesitant" to impose such a severe sanction, he nonetheless believes the remedy is appropriate here. [ECF No. 63, p. 7]. King has also asked for alternative relief: (a) an order striking Akima’s summary judgment motion with prejudice because it relies on the testimony of undisclosed witnesses; (b) an order barring Akima from using in any form the testimony or information from, or information about, Jones, Schingler, and Michaelson; (c) an adverse inference jury instruction; and (d) an award of reasonable attorney’s fees.
Akima’s Response
Branding King’s motion as " spurious" and " baseless," Akima asks for an award of the fees and costs it incurred in responding to the motion. [ECF No. 70, p. 1].
Akima contends that Mitchell, who it describes as the decision-maker, testified that she spoke to Michaelson and Jones (and not Schingler, as King contends) about King’s " work history problems before making a decision on Plaintiff’s employment." [ECF No. 70, p. 1]. Akima then says that these two persons are " referenced in prior discovery and are not on a witness or disclosure list simply because what they relayed to Ms. Mitchell is admissible [sic] and non-hearsay." [ECF No. 70, pp. 1-2 (emphasis supplied) ]. Akima notes that it would now be willing to supplement its interrogatory answers and witness disclosures to include Michaelson and Jones.
Akima’s response emphasizes that the " array of documents" in a " failure to hire case" is " not going to be that substantial." [ECF No. 70, p. 2]. It notes that King was provided more than 700 pages of documents, including company handbooks, job qualifications for the detention officer position at issue here, King’s application, the interviewer’s notes, a spreadsheet with Mitchell’s contemporaneous notes " reflecting the exact reasons why Plaintiff was not hired," job applications from others who applied for the detention officer position, the spreadsheet reflecting the written decisions for other applicants, Akima’s EEOC file, and documents from King’s former employer (i.e,. Doyon-Akal). [ECF No. 70, p. 2]
The Undersigned is typically not swayed by the sheer volume of documents that a party says it produced in discovery. If, for example, a defendant produced 15,000 pages of documents but intentionally withheld only one page of an email which established liability and could be classified as the proverbial " smoking gun," then the 15,000 pages produced would not somehow balance out or mitigate the failure to produce the most-relevant document in a case.
Akima accuses King of not timely taking steps to take relevant depositions. It says King knew about the so-called missing witnesses " in time to take their depositions." [ECF No. 70, p. 3]. It argues that Michaelson is an ICE representative, and not an Akima employee, and that King had an equal right to seek information from him, either formally or informally. [ECF No. 70, p. 3]. It contends that Jones is a Union representative, who refused to endorse King but who " didn’t provide specific adverse information." [ECF No. 70, p. 3]. And Akima says that Schingler " was" an Akima employee but argues that " there is no basis to assume he provided any information about Plaintiff." [ECF No. 70, p. 3].
Akima’s response quotes excerpts from Mitchell’s deposition where she explained that she did not remember what Terry [Nelson] and Wendell [Schingler] said. She did, however, testify that Michaelson said that King was " difficult" and " not a team player." [ECF No. 70, p. 7].
Akima’s discussion about the missing or undisclosed witness claim ends with the following two arguments: (1) " there is no information from Mr. Shingler [sic] that would be relevant to the decision to not hire Plaintiff and this is why he was not disclosed[,]" and (2) " [w]ith respect to conversations with ICE [referring to Michaelson] and the Union representative [referring to Jones], direct testimony from them is not needed or anticipated." [ECF No. 70, p. 7 (emphasis supplied) ].
Concerning emails (or the lack of them), Akima notes that a prior discovery ruling limited the relevant time frame for discovery responses, unless stated otherwise, to April through July 2014. [ECF No. 70, pp. 7-8]. It explains that the emails sent to the EEOC but not produced to King in this lawsuit are from 2015, beyond the discovery time frame. [ECF No. 70, p. 8]. It represents that it has produced all responsive documents for the relevant time period. [ECF No. 70, p. 8].
Akima notes that it attempted to resolve its objection to " discovery about discovery" in connection with a Rule 30(b)(6) deposition notice but that the Undersigned denied it because it was incorrectly designated as an emergency. [ECF No. 70, p. 8].
From a substantive perspective, Akima argues that " discovery about discovery" is impermissible and improper. And it contends that two of its witnesses (Mitchell and Burklow) provided depositions and explained where the documents were located. It also says that Mitchell " would not have knowledge about any ‘litigation holds’ as that would be something done internally by in-house counsel." [ECF No. 70, p. 9].
Akima designated Mitchell as its Rule 30(b)(6) deposition witness. Topic 14 of King’s Rule 30(b)(6) notice is " [a]ll steps taken by Defendant to search for, collect, identify, produce, or withhold documents." [ECF No. 46-1, p. 3]. Topic 15 is " Defendant’s document destruction and retention practices and policies." [ECF No. 46-1, p. 3]. Akima objected to these topics and filed an " emergency" motion for protective order to obtain a ruling that King is not entitled to this discovery. [ECF No. 46]. The Undersigned denied this so-called emergency motion because it violated the discovery procedures order and because it was not a bona fide emergency. [ECF No. 47].
APPLICABLE PRINCIPLES & ANALYSIS
Magistrate judges may issue orders on any " pretrial matter not dispositive of a party’s claim or defense[.]" Fed.R.Civ.P. 72(a). Such an order may not be set aside unless it " is clearly erroneous or is contrary to law." Id.
Thus, magistrate judges have jurisdiction to enter sanctions orders for discovery failures which do not strike claims, completely preclude defenses, or generate litigation-ending consequences. Practice Before Federal Magistrates, § 16.06A (Mathew Bender 2010) (" discovery sanctions are generally viewed as non-dispositive matters committed to the discretion of the magistrate unless a party’s entire claim is being dismissed" ).
The critical factor used to determine whether a magistrate judge may enter an order on a requested discovery sanction is what sanction the magistrate judge actually imposes, rather than the one requested by the party seeking sanctions. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995) (rejecting argument that magistrate judge ruled on dispositive motion because litigant sought entry of a default judgment and explaining that " [e]ven though a movant requests a sanction that would be dispositive, if the magistrate judge does not impose a dispositive sanction," then the order is treated as not dispositive under Rule 72(a)); Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3068.2, at 342-44 (West 1997).
Several of King’s arguments can be resolved quickly.
First, Akima represents that it has no responsive emails for the relevant time period. King suspects that this is an inaccurate position. But his argument is speculative. He focuses on two emails to the EEOC that he had but Akima never produced. But those emails are outside the relevant time period, so Akima’s failure to produce them is hardly surprising and it certainly is not suspicious. King and his counsel have a hunch that there " must be" more emails, but parties and their attorneys often voice such theories. Unless King has a more-specific basis for his argument (and he does not), then the Undersigned rejects this theory. If it turns out that Akima does have responsive emails in the relevant time frame that were not produced, then King can seek other, and perhaps harsher, consequences.
Second, the mere fact that Akima indicated that some witnesses " might" have relevant knowledge but later depositions revealed that they did not is not a ground to strike Akima’s pleadings, and King has not cited any case supporting such extreme relief for this conduct.
Third, Akima tried to obtain a ruling on whether King could obtain Rule 30(b)(6) testimony on " discovery about discovery." Although the Undersigned can fault Akima for filing an emergency motion, I cannot fault Akima for attempting to obtain an order designating the topic as off limits. However, the Undersigned does not substantively agree with Akima that " discovery about discovery" is presumptively and always an off-limits topic. To the contrary, litigants in lawsuits in this district routinely seek Rule 30(b)(6) testimony about the existence and timing of litigation holds and the steps taken to locate responsive documents and electronically stored information. But the issue here is whether extreme sanctions should be entered against Akima for interposing an objection that it first tried to submit to the Undersigned for a ruling. Under those circumstances, the Undersigned does not believe sanctions are justified.
King’s argument for Akima’s failure to implement a litigation hold is murky and unclear. Based on the current record, it is unclear if Akima implemented a litigation hold, and, if so, when. In addition, it is far from clear that any additional emails about King even existed in the first place, so it is difficult to know what consequences, if any, might have arisen from a failure to implement a litigation hold.
However, King does have a legitimate concern over Akima’s failure to timely disclose witnesses with knowledge of the facts of the case.
To be sure, the initial disclosure requirements of Rule 26(a)(1)(A) require a party to provide information only about individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses. Therefore, to the extent that Akima is not relying on an individual to support its defense, this initial disclosure rule would not apply.
But Akima’s summary judgment motion mentions individuals who were not mentioned in the Rule 26 disclosures. For example, it’s Statement of Undisputed Material Facts, submitted in support of its summary judgment motion, refers to several witnesses not listed in Akima’s Rule 26 initial disclosures. [ECF No. 50]. Paragraph 32 mentions that Mitchell had " conversations with Akima’s client (ICE)," an indirect reference to Michaelson. [ECF No. 50, p. 4]. Paragraph 37 also mentions that Mitchell " conferred" with Michaelson and Jones, neither of whom was listed in the initial Rule 26 disclosures. [ECF No. 50, p. 5]. Similarly, paragraph 38 contends that " Mr. Michaelson relayed several concerns about Plaintiff, including that investigations about him were ongoing and ICE ‘had a preference’ that he not return." [ECF No. 50, p. 5]. That same paragraph also says that " Mr. Michaelson also stated that he considered Plaintiff a ‘troublemaker’ and he had concerns about Plaintiff." [ECF No. 50, p. 5]. And that paragraph also noted that " Mr. Jones did not recommend Plaintiff as a new hire[.]" [ECF No. 50, p. 5].
Therefore, Akima is relying on Michaelson and Jones for its defense, as evidenced by their presence in Akima’s Statement of Undisputed Material Facts. Akima should have mentioned them in the initial disclosures. But it did not.
To compound the consequences arising from this omission, Akima argued— in its opposition to the sanctions motion— that direct testimony from Michaelson and Jones is " not needed or anticipated." [ECF No. 70, p. 7]. But that argument is contradicted by Akima’s reference to them in the Statement of Undisputed Material Facts. Similarly, its summary judgment motion highlights the fact that Mitchell, the decision-maker, received information from ICE (i.e., Michaelson) that the agency " considered him a troublemaker and did not want him to return." [ECF No. 52, p. 8].
So it is clear that Akima is relying on these witnesses and should have disclosed them to King.
Moreover, Akima should also have disclosed them in its interrogatory answers, which are not contingent on a defendant’s use of that witness’ information to support its defenses. The interrogatory at issue here called for a listing of fact witnesses, regardless of whether they would be helpful to Akima, helpful to King, or neutral (and regardless of whether the witness is one Akima " may use" to support its defenses). If the individuals have knowledge of information relating to King’s claims and/or Akima’s defenses to the claims, then Akima should have listed them in the interrogatory answer.
Therefore, at a minimum, Akima should have listed Michaelson and Jones. Akima should have also listed Nelson and Schingler in the interrogatory answer. Although Mitchell did not recall at her deposition what she heard from them about King, it was clear that they knew at least something. The mere fact that Mitchell said at a deposition that she did not recall the specifics hardly means that Akima was excused from listing the witnesses.
Moreover, Akima provided another explanation for its failure to list witnesses, but that reason is not convincing. In fact, it does not make much sense at all. Specifically, Akima argues that Michaelson and Jones " are not on a witness or disclosure list simply because what they relayed to Ms. Mitchell is admissible and non-hearsay." [ECF No. 70, pp. 1-2 (emphasis added) ]. Although the purported explanation would be difficult to apprehend either way, the Undersigned concludes that Akima’s explanation consists of an inadvertent lapse in attention. Presumably, Akima intended to say that these two individuals were not listed because their information was inadmissible and hearsay. Of course, that status would not excuse Akima from listing them in the initial disclosure or in interrogatory answers. On the other hand, if Akima actually meant what it said, then the information’s status as being " admissible" and " non-hearsay" is even less of a reason to not list them.
Akima has not cited any case law or other authority to support the notion that a party is excused from its disclosure of witness obligations merely because the witness has only hearsay information. First, Rule 26(a)(1) discusses individuals likely to have " discoverable" information. It is not limited to " admissible" information. Moreover, any information that was provided to Mitchell in connection with her role as the decision-maker would likely be admissible because the comments would not be admitted for the truth of those statements. Instead, they would be admissible to show what Mitchell knew and heard before she made the decision to not hire King.
So it is clear that Akima failed to adequately disclose witnesses in the initial disclosures and also in the interrogatory answers.
Federal Rule of Civil Procedure 37(c)(1) provides, in pertinent part: " If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1) (emphasis added).
Akima has not argued that its failures were substantially justified or harmless. Instead, it argues that King knew about the witnesses but failed to timely take their depositions.
But Akima relies on the belated disclosure by Mitchell in her Rule 30(b)(6) deposition, which was taken on October 5, 2017, to justify its position that King knew of the witnesses through discovery. The discovery was scheduled to close on October 5, 2017, but King filed a motion to extend the discovery deadlines on September 23, 2017. [ECF No. 41]. On October 10, 2017, Judge Martinez extended discovery until October 13, 2017. [ECF No. 48]. King contends that he could not have taken the depositions of the witnesses disclosed for the first time in Mitchell’s deposition in the three-day window provided by the October 10, 2017 Order.
Local Rule 26.1(h), entitled " Reasonable Notice of Taking Depositions," requires at least 7 days written notice before taking a deposition in Florida unless all interested parties stipulate to a shorter time. S.D. Fla. L.R. 26(h). The record does not reflect whether King asked Akima to stipulate to a significantly shorter time to take the depositions. He did not file a motion seeking to take depositions of the witnesses on one or two days’ notice.
The Court has broad discretion in deciding whether a failure to disclose evidence is substantially justified or harmless. Fox v. Safeco Ins. Co. of Ill., No. 8:16-cv-2665, 2017 WL 4102312, at *5 (M.D. Fla. Sept. 15, 2017) (striking defense exhibits). In addition, " the burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party." Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 825 (11th Cir. 2009) (internal quotation omitted).
Exercising the broad discretion afforded trial courts, the Undersigned finds that Akima violated the disclosure rules and that Rule 37 consequences are appropriate. See generally Rigby v. Philip Morris USA Inc., No. 16-16831, __ Fed.Appx. __, __, 2017 WL 4772428, at *2 (11th Cir. Oct. 23, 2017) (affirming summary judgment and holding that district court did not abuse discretion by excluding affidavits, without which there were no disputed material facts precluding summary judgment). See also Knight through Kerr v. Miami-Dade Cty., 856 F.3d 795, 823 (11th Cir. 2017) (finding that the trial court did not abuse its discretion in excluding expert testimony for untimely disclosure).
But the Undersigned deems the most-extreme sanction requested— striking Akima’s summary judgment motion— to be excessive. Instead, the Undersigned finds that the following relief is appropriate: Akima may not rely on any information provided by Michaelson, Jones, and Schingler to support its summary judgment motion or to support its defenses at trial, and it must pay King the costs and reasonable attorney’s fees he incurred in preparing the motion for sanctions.
The Undersigned acknowledges that Akima has already filed its summary judgment motion and Statement of Undisputed Facts. Nevertheless, King is permitted to file a notice advising Judge Martinez of this Order and requesting that the information be redacted from any assessment of the summary judgment motion. The parties are directed to first try to resolve the issue of the amount of attorney’s fees and costs which Akima must pay to King. They will have until December 4, 2017 to reach an agreement. If they do, then the fees and costs shall be paid by December 11, 2017. If an agreement cannot be reached, then King must file his motion for fees and costs by December 11, 2017.
DONE and ORDERED.