Opinion
Case No. 1:99 cv 701
April 11, 2001
ORDER
For the reasons set forth in the accompanying memorandum opinion,
IT IS ORDERED that plaintiff's motion for Rule 37(b) sanctions (docket #99), as amended (docket #'s 100, 101),
be and hereby is GRANTED. Defendant is hereby ordered to pay plaintiff $700.00, within ten days of the date of this order.
IT IS FURTHER ORDERED that plaintiff's motions for additional sanctions (docket #'s 104 (mislabeled as a motion for summary disposition), 106, and 107) are DENIED. However, defendant is expressly cautioned that future failure to abide by the court's orders will result in more severe sanctions, including, but not limited to, a possible default judgment in favor of plaintiff.
IT IS FURTHER ordered that defendant shall, within ten days of the date of this order, supplement its responses as specified in the accompanying memorandum opinion. All interrogatory responses shall comply with Rule 33, including the requirement that they be submitted under oath.
MEMORANDUM OPINION
This is a Title VII action brought by a pro se plaintiff. Plaintiff is a former employee of defendant at its facility located in Stevensville, Michigan. The matter is before the court upon a discovery dispute, despite the fact that discovery was scheduled to be completed in this case more than seven months ago.
On January 19, 2001, the court conducted a hearing upon various motions by plaintiff, including a motion to compel defendant to answer interrogatories and produce various documents. On January 24, 2001, the court entered an order (docket # 97) setting forth its rulings. Paragraph D of the order granted in part and denied in part plaintiff's motion to compel discovery. On or about February 19, 2001, defendant submitted a letter response to plaintiff purporting to supplement defendant's discovery responses as ordered by the court.
The letter response, signed only by counsel, did not comply with Fed.R.Civ.P. 33(b) of the Federal Rules of Civil Procedure because the interrogatory answers were not under oath. The rule states in pertinent part: (1) "Each interrogatory shall be answered separately and fully in writing under oath" and (2) "[t]he answers are to be signed by the person making them and the objections signed by the attorney making them." Nor did defendant file a copy of the proof of service with the court as required by Rule 5.3(a) of the Local Civil Rules of the Western District of Michigan.
On February 28, 2001, plaintiff filed a motion for sanctions based upon defendant's failure to comply with the court's order. (docket # 99). Plaintiff filed an amendment to her motion on March 5, 2001, correcting a "proofreading error" and adding an exhibit which had inadvertently been omitted. (docket # 100). Defense counsel submitted another letter to plaintiff on March 8, 2001, purporting to "supplement" her February 19, 2001 letter, with a carbon copy addressed to the court. On March 15, 2001, plaintiff supplemented her motion for sanctions, expressing her objections to defendant's amended letter response. (docket # 101). Plaintiff complained that defendant had sent the March 8, 2001 "SUGAR COATED" letter to plaintiff "with a copy to the court, pretending to comply with the court's order." ( Id .). After being told by the court that the carbon copy of a letter did not constitute an adequate response to plaintiff's a motion for sanctions, on March 15, 2001, defendant filed a response to plaintiff's motion for sanctions. (docket # 109).
On March 15, 2001, plaintiff filed a motion (mislabeled as a motion for summary disposition) (docket # 104), requesting that judgment be entered in plaintiff's favor as a sanction for plaintiff's failure to comply with the court's order. Plaintiff also filed two additional motions on March 15, 2001, requesting sanctions against defendant for failure to comply with the court's order: Motion to Strike Defendant's Affirmative Defenses (docket # 106) and Motion to Strike Statements (docket # 107).
Upon review, the court finds that defendant has not complied with the court's discovery order and monetary sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure for violation of this court's order are warranted. Defendant is expressly warned by the court that failure to follow this court's orders in the future will result in imposition of more severe sanctions, including possible entry of default judgment in plaintiff's favor .
Discussion
Set forth below are the relevant provisions of the court's order, defendant's letter response to the order, plaintiff's argument, defendant's argument, and the court's resolution of the issue.
1.
Order ¶ 1: Defendant shall produce the personnel file of Patricia Paige in its entirety. Defendant shall also produce the portions of the personnel file of Joe Arabis that reflect any criticism, counseling or discipline concerning his treatment of employees on account of race during the five-year period prior to plaintiff's termination from employment.
All personnel files produced hereunder shall be deemed confidential material under the agreed protective order (docket # 52) previously entered in this action.
Defendant's Letter Response:
Personnel file of Patricia Paige in its entirety: See enclosed documents (bates no's MTC 00194-297), Patricia Paige's PICC file.
Portions of personnel file of Joe Arabis reflecting any criticism, counseling or discipline concerning his treatment of employees on account of race during the five-year period prior to plaintiff's termination from employment: See enclosed document (bates no. MTC 00298), a Document Counseling issued for Leadership Style.
Plaintiff's brief contains the following argument, set forth verbatim: "No affidavit, or denial of Joe Arabis being investigated Due to amount of black employees he terminated." Defendant correctly observes that the court's order did not direct defendant to file an affidavit in this regard. Plaintiff's argument is meritless.
2.
Order ¶ 2: In response to interrogatory no. 8, defendant shall produce all documents, including electronically maintained documents relating to all packages that were the subject of the events taking place on September 15, 1997, that led to discipline against plaintiff. If such documents have been destroyed, defendant shall file an affidavit by a person with knowledge setting forth the circumstances of their destruction and attaching any policy governing such destruction.
Defendant's Letter Response:
Defendant's response directed plaintiff to see the enclosed affidavit of Robin L. Marsh. Ms. Marsh's affidavit consists of four paragraphs.
I am over twenty-one years of age and am a Senior Paralegal employed in the Legal Department at the Corporate Headquarters of Federal Express Corporation in Memphis, Tennessee. My business address is 3620 Hacks Cross Road, Building B, 3rd Floor, Memphis, Tennessee 38125
In my capacity as Senior Paralegal, I am also custodian of Federal Express records and am authorized to authenticate them under oath. The statements below are based upon personal knowledge.
I have done a duly diligent search for airbill numbers for the subject records in the "bucket" on September 15, 1997. I have been unable to locate airbill numbers for the subject records.
Without airbill numbers the subject records cannot be researched. Without airbill numbers it is impossible to determine whether these records exist or not.
Plaintiff asserts that Ms. Marsh's affidavit does not satisfy the court's order. Defendant's response is "Defendant has complied with plaintiff's request. If this Court deems the Affidavit inadequate, Defendant will submit an additional affidavit if necessary." (Def. Brief at 2, docket # 109).
Plaintiff is correct. Ms. Marsh's statement that she conducted a "duly diligent search" is utterly conclusory. The court and plaintiff are left to speculate whether Ms. Marsh spent five seconds attempting to run a single computer search or spent five-to-ten days exploring alternative means of locating the documents that the court has ordered the defendant to produce. A party claiming that it is unable to locate relevant documents the court has compelled it to produce, at a minimum, must explain in precise detail its efforts to locate the "missing" documents. Defendant's offer to produce another affidavit in the future if necessary is disingenuous.
Furthermore, in the event these records were destroyed, Ms. Marsh's affidavit is not "an affidavit by a person with knowledge setting forth the circumstances of their destruction and attaching any policy governing such destruction." Defendant is clearly in violation of this court's order.
3.
Order ¶ 3: Defendant shall produce such documents, including time cards, that show whether Brian Taylor was working on September 15, 1997. If all such documents are destroyed, defendant shall file an affidavit as described above.
Defendant's Letter Response:
"See enclosed document (bates no's [sic] MTC 00001), a FAMIS report reflecting Brian Taylor's hours/days worked."
Plaintiff complains that defendant did not produce the time card or the affidavit required by the court's order. Plaintiff's original brief failed to attach the "FAMIS Report." Plaintiff subsequently submitted the missing attachment. (Plf. Amendment to Motion for Sanctions, docket # 100). Plaintiff observed that the report only shows that plaintiff worked on "September 16, 1997," and not September 15, 1997.
Defendant's response brief states, "Defendant produced a computer record showing that Brian Taylor did not work on September 15, 1997 and also showing the day that he worked immediately prior to September 15, 1997 and the day he worked immediately after September 15, 1997 (Bates 00001). As such, plaintiff's discovery request has been answered and no affidavit was necessary."
Defendant has violated the court's order. The order expressly directed defendant to produce time cards and other documents showing whether Mr. Taylor was working on September 15, 1997. Defendant did not produce Mr. Taylor's card. If the "FAMIS Report" is the only available record, it was incumbent upon defendant to file an affidavit by a person with knowledge setting forth the circumstances of its destruction of Taylor's time card and attaching any policy governing such destruction. Defendant is not free to pick and choose which portions of the court's order it desires to follow.
4.
Order ¶ 5: In response to interrogatory no. 13, defendant shall describe in narrative fashion all steps taken under internal grievance procedures relating to plaintiff's termination.Defendant's Letter Response:
The September 17, 1997 incident which is the basis of this lawsuit was investigated at Step I on or about 12/124/97 [sic] and at Step II on or about 1/1/6/98 [sic], the case was remanded to Step II for reconsideration of discipline. On 1/22/98, upon remand, the Warning Letter was modified due to the "gross misconduct" exhibited by Plaintiff. The modification was that the Warning Letter was rescinded and instructions given to have local management review the facts for further discipline. On 1/26/98 the decision was made to terminate Plaintiff. The termination letter noted that the "case has been reviewed at all levels of the process." On 1/28/98 a letter was sent informing Plaintiff that she could proceed to Step III for review of the termination (since the previous step was a remand to Step II). Upon review by the Appeals Board (Step III), on 2/3/98 the decision to terminate was upheld. The specific decision to terminate was not eligible for the full three-step process because the facts forming the basis of the termination had already been reviewed at all three levels as outlined above and as stated in the 1/26/98 termination letter.
Plaintiff's argument, set forth verbatim, is, "Defendant failed to give DATE all facts regarding termination and at which level first, second, third level." Plaintiff's assertion is meritless.
Defendant's response is in compliance with the court's order. If plaintiff intended anything other than 12/24/97 and 1/1/98 in the first sentence of its response, it should immediately supplement its response to reflect the correct dates.
5.
Order ¶ 6: In response to interrogatory no. 15, defendant shall set forth a narrative description for each category of packages identified in the interrogatory, tracing the flow of the package through defendant's Stevensville, Michigan facility. Defendant shall also produce any written policy or other document setting forth this information that was applicable on or after September 15, 1997.
Defendant's Letter Response:
A customer would enter the station with a package and would hand it to a Customer Service Agent. The Customer Service Agent would accept the package, perform the necessary paperwork for shipment of the package, and scan it. The Customer Service Agent would then take the package and place it in a bin or cart which would be taken back to the sort/load/belt area approximately 20 feet behind the front counter area. Once taken to the sort/load/belt area, the packages would be sorted by handlers to be put on pallets and shrink wrapped to be put on trucks to be delivered. Ramp Transport Drivers would take the palletized packages out to the ramp where they would be loaded onto aircraft to delivery [sic] to their respective hubs.
Plaintiff correctly observed that defendant's response failed to "set forth a narrative description for each category of packages identified in the interrogatory" tracing the flow of such packages through defendant's Stevensville, Michigan facility. Plaintiff also observed that defendant failed to produce the written policy that was in place on flow of packages at the Stevensville, Michigan facility rather than the Memphis facility.
Defendant's response to the motion to compel acknowledges that it failed to set forth a narrative description for each category of packages. Defendant states that this oversight and others were corrected by the March 8th letter which defendant attached as an exhibit. The March 8th letter from defendant also stated, "Because of the small size of the [Stevensville, Michigan] operation, the employees often assisted fellow employees with their duties on an as needed basis. To Mary Worstell's knowledge, there was no written document detailing the flow of packages through the station." Defendant further states, "had Plaintiff brought the oversight to Defendant's attention in accordance with Local Rule 7.1(d), Defendant would have supplemented its response without the need for court intervention."
Defendant's argument that it relied upon a pro se litigant to bring this patent failure to comply with the court order to defendant's attention is, to say the least, surprising. Rule 7.1(d) of the Local Civil Rules of the Western District of Michigan does create an obligation upon the moving party to attempt to obtain concurrence and to document those efforts within its motion. However, the rule was never intended as a safe-harbor for attorneys to be inattentive to the court's orders. Defendant's dogged reliance upon subsection (d) of the local rule is inexplicable when juxtaposed against defendant's clear violations of other subsections of Rule 7.1 and related sections of the local rules. Rule 7.1(a) states, "Briefs shall not be submitted in the form of a letter to the judge." Rule 5.3(a) states that "a proof of service shall be filed with the Court" when a party is responding to interrogatories, requests for production, etc. Defendant violated the court's order. Its noncompliance necessitated plaintiff's motion for sanctions.
6.
Order ¶ 8: Defendant shall produce the September 21, 1998 revision of its guaranteed fair treatment policy, if such a document exists.
Defendant's Letter Response:
None.
Plaintiff's brief argues that "defendant flatly refused to produce this [r]evision." Plaintiff is incorrect. Defendant simply disregarded this paragraph of the court's order. At a minimum, defendant should have indicated that no responsive document exists.
Page 3 of defendant's brief states, "The September 21, 1998 revision to the Guaranteed Fair Treatment Policy was not produced because none exists. As explained to Plaintiff by defendant by letter dated March 8, 2001(Exhibit 1), the Guaranteed Fair Treatment Policy chapter of the People Manual was revised in March of 1998 and November of 1998 and both revised chapters were produced to plaintiff some time ago. (Bates Nos. 380902-128 01319-01764). If plaintiff seeks the September 21, 1998 revisions to the Acceptable Conduct Policy chapter of the People Manual, those revisions were previously produced to Plaintiff as evidenced by the Bates Stamp numbers at the bottom of attachment 4 to Plaintiff's Motion for Sanctions." (Def. Brief at 4).
Plaintiff's attachment 4 is captioned as 2-5 Acceptable Conduct (Last Revised 21 Sept. 1998), Bates stamped 380902-128 02257. It is unclear from the present record whether defendant has produced the entire chapter. Given the minimal inconvenience and in the interests of avoiding further confusion, the court will order defendant to produce the entire chapter in question.
7.
Order ¶ 9: In response to request no. 12, defendant shall produce all e-mails between Joe Arabis and Mary Worstell between August 1 and December 13, 1997, referring to or relating to plaintiff.
Defendant's Letter Response:
"Non-privileged responsive documentation, to the extent that it exists and/or could be located, has already been produced."
Plaintiff argues that defendant has not produced the documents as required by the court order nor identified any basis for withholding documents.
Defendant's brief in this regard is difficult to understand, so defendant's argument is set forth in pertinent part verbatim: "Defendant does not have any nonprivileged emails in its possession which were not already produced to Plaintiff. Defendant is not asserting that such emails would be privileged, but merely that it has none in its possession and stated as much in its February 19, 2001 response to plaintiff." (Def. Brief at 4).
Defendant long ago waived any claim of privilege. Defendant has never filed a privilege log identifying any withheld e-mail or the basis for any claim of privilege as required by Rules 26(b)(5) and 34(b) of the Federal Rules of Civil Procedure. At the January hearing, defendant did not attempt to support any claim of privilege. Defendant will be ordered to clarify its response to unambiguously state that no e-mails responsive to the court's order exist and that none are being withheld under any claim of privilege. If responsive documents exist, defendant will be ordered to produce them immediately and show cause why further sanctions should not be imposed for a continuing violation of the court's order.
8.
Rule 37 provides two sources of authority for the imposition of sanctions in the present situation. First, Rule 37(a)(4) authorizes the court to impose upon the party whose conduct necessitated a discovery motion the reasonable expenses incurred by the opponent in making the motion, including attorney's fees, unless the court finds that the party's nondisclosure or objection was substantially justified. FED. R. CIV. P. 37(a)(4)(A). Second, Rule 37(b)(2) applies where a party has violated a court's discovery order. See Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994). Sanctions available under Rule 37(b) go beyond the imposition of expenses and may include the entry of a default judgment, an order striking out claims or defenses, and other substantive relief. The availability of sanctions under Rule 37 was intended to have a deterrent effect arising from the possibility of serious consequences as a result of discovery abuse. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976); 8A CHARLES A. WRIGHT, ARTHUR R. MILLER RICHARD L. MARCUS, FEDERAL PRACTICE PROCEDURE § 2281 (2d ed. 1994). Imposition of sanctions in the present case, as in all cases, should be designed to ensure a party's future compliance with its discovery obligations and not to punish.
Rule 37(b) sanctions are discretionary and are reviewed by the court of appeals under an abuse of discretion standard. Harmon v. CSX Transp., Inc., 110 F.3d 364, 366 (6th Cir. 1997); Freeland v. Amigo, 103 F.3d 1271, 1276 (6th Cir. 1997). The Sixth Circuit has endorsed a sequential approach to discovery sanctions. In determining the appropriate sanction, the trial courts are directed to consider the following factors (1) whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the party's failure to cooperate in discovery; (3) whether the party was warned that failure to cooperate could lead to the sanction; and (4) whether less drastic sanctions were first imposed or considered. 103 F.3d at 1277; accord Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988).
The first factor is whether the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault. Here, defendant is clearly at fault, for the reasons set forth above, in failing to comply with this court's discovery order. Second, plaintiff has been prejudiced. Other than the present issues, discovery is closed in this case. Defendant filed a motion for summary judgment and plaintiff's period within which to file a response is rapidly disappearing. Third, defendant was on notice that failure to provide discovery as required under the applicable rules and court orders would result in the imposition of sanctions. On October 12, 2001, the court imposed Rule 37(b) sanctions in the amount of $900 against plaintiff in favor of defendant pursuant to defendant's motion. The sanctions were based upon plaintiff's being 3.5 hours late for her scheduled deposition, her "evasive, belligerent and argumentative responses at that deposition," and her failure to produce documents when ordered to do so by the court. (docket # 68). Defendant has not taken seriously its obligation to comply with this court's discovery order. While the more drastic sanctions plaintiff has requested could be imposed upon this record, monetary sanctions should prove sufficient to assure defendant's future compliance. Plaintiff is proceeding pro se, but has clearly expended some time in filing her multiple motions for sanctions. The court finds that $700 represents a proportionate sanction sufficient to deter future violations of this court's orders.
Conclusion
For the reasons set forth above, plaintiff's motion for sanctions (docket # 99), as amended (docket #'s 101, 102), will be granted and sanctions awarded in plaintiff's favor against defendant in the amount of $700. Plaintiff's motions for additional sanctions (docket #'s 104 (mislabeled as a motion for summary disposition), 106, and 107) will be denied. Defendant will be ordered to supplement its responses as set forth herein.