Opinion
No. 01-2106-JWL
August 29, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the following motions: (1) Plaintiff's Motion for Relief Under Rule 37(c) Seeking Sanctions Including, But Not Limited to, the Striking of Expert Disclosures and Testimony of Defendant (doc. 120); and (2) Plaintiff's Motion for Expenses and Sanctions Under Federal Rule of Civil Procedure 37(a)(4) for Defendant's Failure to Answer and Respond to Discovery (doc. 123).
• Plaintiff's Motion for Relief Under Rule 37(c) Seeking Sanctions Including, But Not Limited to, the Striking of Expert Disclosures and Testimony of Defendant (doc. 120)
For the reasons set forth in Plaintiff's motion, the Court finds Defendant's Rule 26(a)(2) disclosures regarding Bruce LeBlanc, Ph.D., and Timothy J. Lednicky to be deficient and not in compliance with Fed.R.Civ.P. 26(a)(2). The Court does not, however, find that the designations and disclosures of Dr. LeBlanc and Mr. Lednicky should be stricken or that either expert should be precluded from testifying at trial, as Plaintiff requests. The Court will instead direct Defendant to supplement Dr. LeBlanc's and Mr. Lednicky's reports in a manner that addresses the deficiencies cited in Plaintiff's motion. Said supplemental reports and disclosures shall be served on Plaintiff within ten (10) days of the date of filing of this Order.
In addition, the Court will direct Defendant to either (1) provide Plaintiff's counsel with what remains of the exemplar shirt upon which Dr. LeBlanc conducted his testing of April 26, 2002, so as to give Plaintiff the opportunity to conduct his own testing of the shirt, or (2) replicate the testing conducted by Dr. LeBlanc in the presence of Plaintiff's counsel or agent. Defendant shall provide the exemplar shirt to Plaintiff's counsel or replicate the testing within twenty (20) days of the date of filing of this Order. If Defendant provides Plaintiff with the exemplar shirt, Plaintiff shall have ten (10) days thereafter to conduct his own testing on the exemplar shirt and to supplement his expert's report, if he so chooses.
• Plaintiff's Motion for Expenses and Sanctions Under Federal Rule of Civil Procedure 37(a)(4) for Defendant's Failure to Answer and Respond to Discovery (doc. 123)
Plaintiff filed two motions to compel regarding Defendant's responses and objections to Plaintiff's First Interrogatories and First and Second Requests for Production. After those motions were filed, and before the Court was able to rule on them, Defendant withdrew all but one of its numerous objections to the interrogatories and requests for production and served extensive supplemental responses, thereby rendering the motions to compel moot. Plaintiff now seeks to recover the fees and expenses he incurred in making those motions to compel. In addition, Plaintiff seeks reimbursement for attorney fees and expenses (including travel expenses), he incurred when his counsel reviewed the files of others attorneys with similar cases filed against Defendant. He also seeks to recover the fees and expenses he incurred when his counsel re-deposed witnesses and deposed new witnesses because of Defendant's supplemental discovery responses. Plaintiff also seeks to recover the fees and expenses he has incurred in connection with the instant motion for sanctions. Finally, Plaintiff asks the Court to strike Defendant's affirmative defenses.
See doc. 35 and 74.
Award of Fees and Expenses Under Fed.R.Civ.P. 37(a)(4)(A)
Pursuant to Fed.R.Civ.P. 37(a)(4)(A), when a motion to compel is granted or the requested discovery is provided after the motion to compel was filed, "the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion including attorney's fees, unless the court finds that . . . the opposing party's . . . response or objection was substantially justified, or that other circumstances make an award of expenses unjust."
Here, Defendant provided the requested discovery after Plaintiff had filed his motions to compel. The Court does not find that Defendant's initial objections were substantially justified, as evidenced by the fact that Defendant later withdrew all but one of them. Nor does the Court find any special circumstances in this case that would make an award of fees and expenses unjust. Accordingly, the Court holds that Plaintiff is entitled to recover, pursuant to Fed.R.Civ.P. 37(a)(4)(A), the reasonable fees and expenses that he has incurred in making the motions to compel.
Additional Sanctions Pursuant to Fed.R.Civ.P. 26(g) and D.Kan. Rule 11.1
Federal Rule of Civil Procedure 26(g)(2) sets forth an attorney's duty as it applies to responses and objections to discovery requests. It provides in pertinent part:
Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated . . . . The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; [and]
(B) not interposed for a any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation[.]
Given the importance of this duty, Rule 26(g)(3) permits a court, upon motion or upon its own initiative, to impose "appropriate sanctions" upon the attorney making the certification and/or the party on whose behalf the objections were made. Those sanctions may include the payment of the reasonable expenses and attorney fees incurred because of the violation. Furthermore, D.Kan. Rule 11.1 allows this Court to impose additional sanctions for the violation of a federal rule or local rule, including the imposition of expenses and fees and the striking of pleadings.
Id.
The Court is well aware of counsel's obligations to act as an advocate for his/her client and to use legal procedure for the fullest benefit of the client. Those obligations, however, must be balanced against counsel's duty not to abuse legal procedure. Thus, even if the client directs counsel to respond to discovery requests in a certain manner, counsel has the ultimate obligation to ensure that the responses and objections are well grounded in fact and law.
See McCoo v. Denny's, Inc., 192 F.R.D. 675, 697-98 (D.Kan. 2000) (citing Kansas Sup.Ct. Rule 226, KRPC 3.1 cmt).
Id.
Id.
The Court holds that sanctions are warranted pursuant to Rule 26(g) and D.Kan. Rule 11.1. These sanctions will be awarded in addition to those awarded pursuant to Rule 37(a)(4)(A).
See Part A, supra.
Pursuant to Rule 26(g) and D.Kan. Rule 11.1, the Court will award Plaintiff some, if not all, of the additional, reasonable expenses and fees he has incurred as a result of Defendant's unwarranted objections and later withdrawal of those objections. This award will include, some, if not all, of the reasonable fees and expenses incurred by Plaintiff in (1) preparing and filing the instant motion for sanctions, (2) traveling and reviewing the files of others attorneys with similar cases filed against Defendant, and (3) re-deposing witnesses and deposing new witnesses because of Defendant's supplemental discovery responses.
On the other hand, the Court does not find that it would be just to strike Defendant's affirmative defenses, as Plaintiff requests. The Court will therefore decline to do so.
Party Responsible for Payment
Having determined that Plaintiff is entitled to recover these reasonable fees and expenses, the issue arises as to whether it is the Defendant Wal-Mart Stores, Inc. ("Wal-Mart") itself or Wal-Mart's counsel, or perhaps both, who should be required to pay the sanctions. 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, 696 (D.Kan. 2000) (imposing Rule 11, 26(g) and 37(a)(4)(C) sanctions); Starlight Int'l, Inc. v. Herlihy, 190 F.R.D. 587, 593 (D.Kan. 1999) (imposing Rule 26(g) and 37(b) (d) sanctions).
McCoo, 192 F.R.D. at 697 (citations and quotations omitted).
At present, the Court has no evidence that Wal-Mart itself was responsible for the discovery objections made here. However, if Wal-Mart, Plaintiff, or any of their attorneys wishes to provide the Court with evidence in this regard, that party and/or counsel may do so in the pleading(s) it provides to the Court pursuant to the briefing schedule set forth in Part D below. The Court will defer ruling on this issue until it has received the parties' pleadings.
To the extent the Court may decide to impose all or part of the sanctions award against Defendant's counsel, the Court notes that an issue exists as to whether the individual attorney or his law firm should be sanctioned. Pursuant to Kansas Rule of Professional Conduct 5.1 and the comment thereto, the partners or shareholders in a law firm are responsible for making reasonable efforts to assure that all lawyers in the firm conform to the rules of professional conduct. The Court therefore holds that it is the law firm rather than the individual attorneys representing Defendant who should be responsible for payment of the expenses.
See id. at 697 (holding law firm rather than individual attorneys liable for sanctions imposed under Fed.R.Civ.P. 11, 26(g) and 37(a)(4)(C)).
In this case, Defendant has been represented by attorneys from two different law firms. Initially, Defendant was represented by attorneys from the law firm of Baker, Sterchi, Cowden Rice, L.L.C ("Baker, Sterchi"). The Baker, Sterchi attorneys were the only counsel of record when Defendant responded and objected to Plaintiff's First Interrogatories and First and Second Requests for Production and when Defendant responded to the two motions to compel. On March 21, 2002, attorneys from the law firm of Fisher, Patterson, Sayler Smith ("Fisher, Patterson") entered their appearance. Given that the Fisher, Patterson attorneys did not enter their appearance until after the discovery objections at issue were made, the Court will decline to impose any sanctions against them.
In light of the above, the Baker, Sterchi law firm and Wal-Mart are the two possible entities against whom these sanctions may be imposed. If any party or counsel desires to address the issue as to which entity should be held liable, they may do so in accordance with the briefing schedule set forth in Part D below. The Court will defer ruling on this issue until it has received the parties' pleadings.
Briefing Schedule
Having ruled that Plaintiff is entitled to some or all of these reasonable fees and expenses, the Court sets the following briefing schedule. Within seven (7) days of the date of filing of this Order, Plaintiff's counsel shall file an affidavit itemizing the reasonable fees and expenses that Plaintiff seeks in his motion, accompanied by any argument and/or records that Plaintiff deems necessary. Within ten (10) days of Plaintiff's filing, Defendant and its attorneys may file their response(s). In the response(s), they may object to the reasonableness of the fees and expenses requested in addition to providing the Court with information and argument regarding which entity should be held responsible for paying the sanctions award.
After reviewing these pleadings, the Court will determine the proper amount of fees and expenses to be imposed and determine the party or parties against whom they should be imposed.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Relief Under Rule 37(c) Seeking Sanctions Including, But Not Limited to, the Striking of Expert Disclosures and Testimony of Defendant (doc. 120), is granted in part and denied in part, as set forth herein.
IT IS FURTHER ORDERED that Defendant shall supplement the reports and Rule 26(a)(2) disclosures of Bruce LeBlanc, Ph.D., and Timothy J. Lednicky and serve the supplemental reports and disclosures on Plaintiff within ten (10) days of the date of filing of this Order.
IT IS FURTHER ORDERED that Defendant shall either provide Plaintiff's counsel with whatever remains of the exemplar shirt upon which Dr. LeBlanc conducted his testing of April 26, 2002, or replicate the testing conducted by Dr. LeBlanc in the presence of Plaintiff's counsel or agent. Defendant shall provide the exemplar shirt to Plaintiff's counsel or replicate the testing within twenty (20) days of the date of filing of this Order. If Defendant provides Plaintiff with the exemplar shirt, Plaintiff shall have ten (10) days thereafter to conduct his own testing on the exemplar shirt and to supplement his expert's report, if he so chooses.
IT IS FURTHER ORDERED that Plaintiff's Motion for Expenses and Sanctions Under Federal Rule of Civil Procedure 37(a)(4) for Defendant's Failure to Answer and Respond to Discovery (doc. 123) is granted in part and denied in part, as set forth herein.
IT IS FURTHER ORDERED that Plaintiff shall file, within seven days of the date of filing of this Order, an affidavit of his counsel itemizing the reasonable fees and expenses that Plaintiff seeks in his motion, accompanied by any argument and/or records that Plaintiff deems necessary. Within ten days thereafter, Defendant and/or its counsel shall file their response(s).
IT IS SO ORDERED.