Opinion
No. 02-2194-JWL
October 23, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion to Compel Discovery (doc. 23). More specifically, the Motion seeks responses from Plaintiff to written discovery requests, as well as expenses and attorney fees Defendant incurred in connection with efforts made to obtain the responses.
Facts
On August 2, 2002, Defendant served its first discovery requests on Plaintiff by mail. Pursuant to federal rule, responses to these requests should have been served by Plaintiff on or before September 3, 2002.
Certificate of Compliance, Exhibit A to Defendant's Motion to Compel (doc. 23).
Fed.R.Civ.P. 33, 34.
On September 5, 2002, the parties mediated this matter. The case did not settle. On September 10, 2002, Defendant's counsel sent a letter to counsel for Plaintiff via facsimile reminding him that the discovery responses had been due on September 3, 2002. On September 11, 2002, Plaintiff's counsel left a voice message for Defendant's counsel, indicating Plaintiff would respond in the near future.
Certificate of Compliance, Exhibit A to Defendant's Motion to Compel (doc. 23).
Id.
On September 17, 2002, Defendant's counsel again faxed a letter to Plaintiff's counsel reminding him that Plaintiff had not responded. This letter stated that if Plaintiff did not provide immediate responses, Defendant would be forced to file a Motion to Compel. On September 19, 2002, counsel for Plaintiff called Defendant's counsel and stated he planned to meet with Plaintiff and expected to serve Plaintiff's responses to the discovery requests by the following day (September 20, 2002). At that time, Defendant's counsel indicated Defendant would be forced to file a motion to compel discovery if it did not receive responses by September 23, 2002.
Id.
Id.
Id.
On October 1, 2002, Defendant had not received the responses and consequently filed this Motion to Compel on that same day. On October 3, 2002 — two days after Defendant filed its Motion to Compel — Plaintiff served written responses to the discovery propounded. The parties subsequently communicated to the Court by telephone that, because responses had been served, the substantive portion of the Motion requesting the Court to compel such responses was now moot. In this telephone call, Defendant also communicated to the Court that the portion of the Motion requesting expenses and fees incurred in connection with efforts made to obtain Plaintiff's discovery responses was not moot. The parties subsequently addressed the issue of sanctions in their briefing and the Court is now ready to rule.
Id.
Discussion
As a preliminary matter, the Court is not persuaded, as Plaintiff argues, Defendant's to attach to its Motion copies of the discovery propounded renders the Motion invalid. Although attaching such exhibits ensures the Court has a sufficient amount of information to rule on the Motion to Compel, the substance of the information contained in the written discovery here is irrelevant to the issues presented.
With regard to the substantive issue of sanctions, Rule 37 within the Federal Rules of Civil Procedure provides, in relevant part, that
if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity be heard, require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery, without court action, or that the opposing party's nondisclosure . . . was substantially justified, or that other circumstances make an award of expenses unjust."
In an attempt to justify the failure to respond, Plaintiff argues he had difficulty completing the discovery responses due to the interruption caused by mediation. Plaintiff also argues imposition of sanctions would create an economic hardship for him — and thus be unjust — given the amount of time Plaintiff has taken off of work in order to participate in activities related to this lawsuit, including but not limited to the mediation.
The Court commends both parties for the time, effort and resources expended to prepare for and attend the September 5, 2002 mediation. Plaintiff's argument that the mediation prevented him from responding to the requested discovery, however, is disingenuous. Plaintiff received the requests a month before the mediation and did not serve responses until almost a month following the mediation. In fact, the pleading filed by Plaintiff notes that Plaintiff and his counsel waited until September 20, 2002 to begin preparing responses to the discovery requests.
Based on the facts and circumstances presented, the Court finds Defendant, as the movant here, made a good faith effort to obtain the discovery responses without court action. The Court further finds that Plaintiff's failure to provide responses was not justified and that there are no other circumstances before the Court making an award of expenses unjust. Finally, the Court finds Plaintiff has had sufficient opportunity to be heard regarding the issue of sanctions, giving his briefing addressed only the issue of sanctions.
Based on these findings, the Court holds an award of reasonable costs and expenses incurred by Defendant in preparing and filing the instant motion is just and appropriate. The purpose of sanctions is not merely to reimburse the wronged party or to penalize the offending party, but to deter the offending party from engaging in further misconduct and to deter other from engaging in similar misconduct.
National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976).
Having determined that Defendant is entitled to recover its reasonable expenses, the Court must next determine whether Plaintiff's counsel or Plaintiff himself should be required to pay the sanctions. The federal rules permit the court to "apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner." To the extent possible, sanctions should be imposed only upon the person or entity responsible for the sanctionable conduct. The sanctioning of a party, as opposed to the party's counsel, "requires specific findings that the party was aware of the wrongdoing."
White v. General Motors Corp. Inc., 908 F.2d 675, 685-86 (10th Cir. 1990) (imposing Rule 11 sanctions); McCoo v. Denny's, Inc., 192 F.R.D. 675, 697 (D.Kan. 2000) (imposing Rule 11, 26(g)(3), and 37(a)(4) sanctions); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D.Kan. 1999) (imposing Rule 26(g) and 37(b) and (d) sanctions); Giroux v. Farm Credit Bank of Wichita, No. 95-1499-MLB, 1997 WL 109733, at *1 (D.Kan. Feb. 13, 1997) (imposing Rule 37(a)(4) sanctions).
McCoo v. Denny's, Inc., 192 F.R.D. at 697 (citing White, 908 F.2d at 685-86).
In the absence of any evidence that Mr. Claytor was responsible for the sanctionable conduct here, the Court finds it appropriate to hold Gerald Thompson, Mr. Claytor's attorney, solely responsible for paying the monetary sanctions. To aid the Court is determining the proper amount of expenses, Defendant's counsel shall file, on or before November 1, 2002, an affidavit itemizing the expenses, including attorney fees, that Plaintiffs incurred in bringing the referenced Motion to Compel. Plaintiff's counsel shall have until November 8, 2002 to file a response to the affidavit. The Court will then issue a second order, apportioning the expenses and fees and specifying the amount and time of payment.
See Starlight Int'l, 190 F.R.D. at 594 (attorneys rather than parties responsible for insuring adequacy of responses to requests for production).
IT IS SO ORDERED.