Opinion
8:20-cv-03827-TMC-JDA
09-27-2021
James W. Davenport, Plaintiff, v. Scott J. Stoller, W. Russell Burns, Anderson County SC, Robert A. Wronski, Arnold Alier, Richard C. Naugler, and South Carolina Department of Health and Environmental Control, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss as a discovery sanction filed by Defendants Scott J. Stoller, W. Russell Burns, and Anderson County S.C. (“Anderson County Defendants”) [Doc. 22] and a motion to dismiss for failure to comply with this Court's previous Order filed by Robert A. Wronski, Arnold Alier, Richard Naugler, and South Carolina Department of Health and Environmental Control (“DHEC Defendants”) [Doc. 23]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff filed this action on October 30, 2020, against Anderson County and DHEC Defendants alleging several state and federal causes of action arising out of alleged retaliation against Plaintiff as a result of his confronting Stoller regarding Stoller's alleged use of government funds to benefit himself and his family. [Doc. 1.] On June 7 and June 14, 2021, Anderson County Defendants and DHEC Defendants filed motions to compel discovery from Plaintiff. [Docs. 18, 19.] On June 25, 2021, the Court granted the motions to compel and ordered Plaintiff to provide complete discovery responses by July 12, 2021. [Doc. 21.]
On July 27, 2021, Anderson County Defendants filed a motion to dismiss as a discovery sanction, contending that, while they received Plaintiff's responses to discovery on July 12, 2021, the responses were incomplete. [Doc. 22 at 2.] Anderson County Defendants note that Plaintiff advanced a number of objections to the discovery requests (e.g., Plaintiff's responses to Defendant Rusty Burns Interrogatories number 6; Plaintiff's answers to Anderson County's First Set of Interrogatories numbers 1, 3, 4 and 9), and they argue that Plaintiff's failure to provide complete responses after being ordered to fully comply with discovery has significantly hindered their ability to defend against Plaintiff's claims. [Id. at 3.]
On August 10, 2021, DHEC Defendants filed a motion to dismiss Plaintiff's Complaint for failure to comply with this Court's previous Order compelling Plaintiff to fully comply with discovery. [Doc. 23.] DHEC Defendants argue that they received Plaintiff's responses on July 12, 2021, but that the responses were incomplete and not a single document was produced. [Id. at 2.] Counsel for DHEC Defendants contends he emailed Plaintiff's counsel regarding the discrepancies on July 29, 2021, but received no response. [Id. at 3.] DHEC Defendants also argue that Plaintiff's response that he has “‘boxes and boxes'” of documents responsive to their requests that they can come and review is not acceptable. [Id.] DHEC Defendants' counsel represents that he attempted a compromise by requesting a detailed index of Plaintiff's boxes, but counsel received no response. [Id.] DHEC Defendants argue that by virtue of Plaintiff's “providing incomplete responses, vague, and contradictory responses as well as producing not a single document, ” DHEC Defendants have been “unable to move forward with deposing . . . Plaintiff, subpoenaing relevant medical documents, and deposing and/or obtaining relevant documents from Plaintiff's possible expert witnesses.” [Id.] DHEC Defendants “respectfully submit that Plaintiff's Complaint should be stricken and his action should be dismissed” or, “[a]lternatively, Plaintiff should be required to fully and completely respond to [DHEC] Defendants' discovery requests as soon as possible.” [Id. at 4.]
APPLICABLE LAW
Discovery Sanctions
Federal Rule of Civil Procedure 37(b)(2)(A) allows the court to sanction a party who “fails to obey an order to provide or permit discovery.” These sanctions, outlined at Rule 37(b)(2)(A)(i-vii), range in severity from designating facts be established for purposes of the action, to striking pleadings in whole or in part, to rendering default judgment against the disobedient party.
Federal district courts possess great discretion to sanction parties for failure to obey discovery orders. See Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991) (“A primary aspect of th[eir] discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.”). This discretion diminishes, however, when the requested relief involves a default judgment. See Mutual Fed. Sav. & Loan v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (“When the sanction involved is judgment by default, the district court's ‘range of discretion is more narrow' because the district court's desire to enforce its discovery orders is confronted head-on by the party's rights to a trial by jury and a fair day in court.” When considering dismissal as a discovery sanction, courts apply a four-part test in which they take into account four factors known as “the Wilson factors”: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice the noncompliance has caused the other party; (3) the need to deter the particular type of noncompliance; and (4) the effectiveness of less drastic sanctions. Id. (citing Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 503-05 (4th Cir. 1977)). This analysis is designed to “insure that only the most flagrant case, where the party's noncompliance represents bad faith and callous disregard for the authority of the district court and the Rules, will result in the extreme sanction of dismissal or judgment by default.” Id. Additionally, the Fourth Circuit has emphasized the importance of warning a party prior to dismissing its claim as a discovery sanction. See Hathcock v. Navistar Int'l Transp. Corp., 53 F.3d 36, 40 (4th Cir. 1995) (“[T]his court has emphasized the significance of warning a defendant about the possibility of default before entering such a harsh sanction.”); Choice Hotels Int'l v. Goodwin & Boone, 11 F.3d 469, 471 (4th Cir. 1993) (“The plaintiff is entitled to be made aware of this drastic consequence of failing to meet the court's conditions at the time the conditions are imposed, when he still has the opportunity to satisfy the conditions and avoid it.”).
DISCUSSION
Anderson County Defendants
As stated above, Anderson County Defendants argue that Plaintiff advanced a number of objections to the information and documents sought (e.g., Plaintiff's responses to Defendant Rusty Burns Interrogatories number 6; Plaintiff's answers to Anderson County's First Set of Interrogatories numbers 1, 3, 4 and 9), and that Plaintiff's failure to provide complete responses after being ordered to fully comply with discovery has caused Anderson County Defendants great prejudice in their ability to defend against Plaintiff's claims. [Doc. 22 at 3.] In response, Plaintiff contends that, with respect to Anderson County numbers 1, 3, 4, and 9, “Plaintiff raised preliminary objections to the extent that the interrogatories sought mental impressions and litigation strategies of Plaintiff's counsel” and that “Plaintiff included detailed, substantive responses about the relevant factual allegations subject to any preliminary objections.” [Doc. 24 at 2.] With respect to Burns's Interrogatory number 6, Plaintiff maintains that he “fully answered the remainder of the interrogatory, subject to the preliminary objection. [Id.] Plaintiff contends that it provided complete substantive responses and that, to the extent opposing counsel had concerns, the appropriate course of action would have been to confer with Plaintiff's counsel regarding the deficiencies. [ Id. at 3-4.]
As an initial matter, the undersigned has reviewed Plaintiff's responses to Anderson County Defendants' Interrogatories numbers 1, 3, 4, and 9 [Doc. 22-1 at 36-40, 43-44] and finds the responses to be appropriate. While Anderson County Defendants argue that these responses are insufficient or incomplete, they have failed to specify why that is the case. And the same is true of Anderson County Defendants' contention that Plaintiff's response to Burns's Interrogatory number 6 [id. at 52-53] is insufficient or incomplete.
More importantly, Anderson County Defendants fail to mention or even discuss how the Wilson factors would support the dismissal of this action or striking of Plaintiff's Complaint based on their disappointment in the responses they received to discovery. Importantly, there is no allegation that Plaintiff's counsel acted in bad faith. Accordingly, the Court concludes that dismissal of this action would be inappropriate in light of the Wilson factors.
DHEC Defendants
DHEC Defendants argue that they received Plaintiff's responses on July 12, 2021, as ordered, but that the responses were incomplete and not a single document was produced. [Doc. 23 at 2.] DHEC Defendants also argue that Plaintiff's response that he has “‘boxes and boxes'” of documents responsive to their requests that they can come and review is not acceptable. [Id. at 3.] In response, Plaintiff contends Defendants already have possession or access to most, if not all, of the documents at issue in this case. [Doc. 25 at 2.] Plaintiff argues that “[i]n an effort to avoid duplication of expenses and time in copying, scanning, and Bates labeling documents in Plaintiff's possession, the undersigned offered opposing counsel the opportunity to review the numerous bankers' boxes of documents amassed during the underlying case, which would comprise most of the documents that would be responsive to Defendants' discovery requests in this case. Neither counsel for the two sets of Defendants in this case has attempted to schedule a time for the document review.” [Id.] In reply, DHEC Defendants argue that they are entitled to know what documents Plaintiff refers to in his responses to all of his discovery responses and that they should not have to guess. [Doc. 26 at 1.] Additionally, due to COVID-19, counsel “has no desire to visit Plaintiff's counsel's office for an extended length of time to sift through ‘boxes and boxes' of documents.” [Id.] DHEC Defendants note that they requested that the documents be indexed and that “the index . . . be sufficiently detailed . . . to cover the documents identified vaguely by Plaintiff in his discovery responses.” [Id. at 2.]
As an initial matter, with respect to DHEC Defendants' request to dismiss this matter as a discovery sanction, the parties failed to address the Wilson factors that would support such a drastic sanction. Additionally, there is no allegation that Plaintiff's counsel acted in bad faith. Thus, the Court concludes that application of the Wilson factors would not support dismissal of this action.
The Court does, however, take issue with the manner in which Plaintiff's counsel sought to produce documents in response to DHEC Defendants' requests for production. The requests for production from DHEC Defendants specifically requested “production for inspection and copying” of documents in accordance with Rule 34 of the Federal Rules of Civil Procedure.” [Doc. 19-1 at 3.] Rule 34 provides that “[r]esponses must either state the request is permitted or state an objection, stating the reasons for the objection.” Fed.R.Civ.P. 34(b)(2)(B). Pursuant to Rule 34, “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed.R.Civ.P. 34(b)(2)(E)(i) (emphasis added); see also T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449, 456 (W.D. N.C. 1991). “A party who takes the option of producing documents in the usual course of its business bears the burden of demonstrating that the documents were produced in this manner.” Pinnacle Bank v. Tradesman Brewing Co., No. 2:20-837-RMG, 2020 WL 6305331, at *2 (D.S.C. Oct. 27, 2020) (internal quotation marks omitted). “Unlike Rule 33(d), which governs Interrogatories, Rule 34(b) does not require the responding party to make specifications for all document productions.... If the producing party produces documents in the order in which they were kept in the usual course of business, the Rule imposes no duty to organize and label the documents.” In re G-I Holdings Inc., 218 F.R.D. 428, 439 (D.N.J. 2003).
In this case, Plaintiff gives no indication that he produced the documents in the order in which they were kept in the usual course of business. Thus, under Rule 34, Plaintiff was required to “organize and label [the responsive documents] to correspond to the categories in the requests.” Rule 34 (b)(2)(E)(i). It is apparent from the motions and responses in this case that Plaintiff failed to comply with this requirement. Accordingly, it is recommended that counsel for Plaintiff be given twenty (20) days to organize and label the responsive documents to correspond to the categories in DHEC Defendants' requests, and to produce the same to DHEC Defendants in accordance with the requirements of Rule 34.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Anderson County Defendants' motion to dismiss as a discovery sanction [Doc. 22] and DHEC Defendants' motion to dismiss for failure to comply with the Court's previous Order [Doc. 23] both be DENIED.
It is also recommended that Counsel for Plaintiff be ORDERED to organize and label the responsive documents to correspond to the categories in the requests in accordance with Rule 34(b)(2)(E)(i), and to produce the same to DHEC Defendants within twenty (20) days of the District Judge's Order ruling on this Report and Recommendation.
IT IS SO RECOMMENDED.