ROBERT L. WILKINS, United States District Judge.
This matter comes before the Court on Defendants' Motion for Sanctions, Plaintiff's Opposition, and Defendants' Reply. The defendants ask this Court to impose sanctions pursuant to its inherent power because the plaintiff falsified medical records that she produced in discovery. After hearing argument from both parties, as well as testimony from the plaintiff, the Court finds by clear and convincing evidence that (1) the plaintiff submitted false medical records to the defendants, and (2) the plaintiff's counsel failed to certify the plaintiff's discovery response and failed to investigate and correct her deficient response. For these reasons, the Court sanctions both the plaintiff and her counsel.
Plaintiff Lynn M. Johnson sued Defendants BAE Systems, Inc., BAE Systems Information Solutions, Inc. (collectively "BAE" or "defendants"), and Thomas S. Schiller, an employee of BAE, for gender discrimination, sexual harassment and retaliation in connection with her employment for the Defense Intelligence Agency ("DIA"). See Plaintiff's Complaint (Pl.'s Compl.) ¶ 1. Ms. Johnson alleged that Mr. Schiller, her trainer and first-liner supervisor, made inappropriate comments about her body and physical appearance, "grabbed and squeezed [her] buttocks," and made other sexual advances while she was deployed to Iraq for the DIA. See id. at ¶¶ 9, 13, 14. Ms. Johnson also alleges that as a result of Mr. Schiller's behavior, she "experienced severe physical and emotional health problems" and sought medical attention while deployed in Iraq and upon her return to the United States. See id. at ¶ 23. She also alleges that her physicians "diagnosed her as suffering from anxiety and depression," and that she is "being treated for an adrenal disorder." See id.
Plaintiff's principal claim for damages is emotional distress.
With this backdrop, the Court finds, by clear and convincing evidence, that the following events occurred
On April 4, 2013, BAE sent the plaintiff correspondence explaining that, "[g]iven Ms. Johnson's claimed compensatory damages and her retention of an expert to testify regarding same, Ms. Johnson will need to undergo an independent medical examination by our expert, Stephen Siebert, M.D., M.P.H.... Please also ensure that we have all available medical records well in advance of the examination." Defs.' Mot. Ex. D at 1. BAE scheduled Dr. Siebert's medical examination of Ms. Johnson for May 15, 2013. See Pl.'s Opp. at 4.
On May 14, the day before Dr. Siebert's scheduled examination of Ms. Johnson, Ms. Johnson gave her counsel, Mr. Jordan, a copy of what purported to be her treatment records with Dr. Hayden, as well as information regarding her pre- and post-deployment psychiatric screenings. See id. That same day, Mr. Jordan mailed the documents — without a cover letter, bates stamp, or any other means of identifying and describing the disclosure — to BAE. See id. Mr. Jordan did not review Ms. Johnson's treatment records prior to mailing them to BAE. See id. at 5.
BAE received Ms. Johnson's treatment records on May 15, the day of her examination. See Defs.' Mot. Ex. H at 1. At her examination, Ms. Johnson also provided Dr. Siebert with a copy of what purported to be her treatment records with Dr. Hayden. See id. Ex. I at 1. Dr. Siebert's examination of Ms. Johnson made it clear, however, that the medical information provided by Ms. Johnson and her counsel was incomplete. See id. at 6.
On June 14, BAE issued a subpoena and deposition notice for Dr. Hayden. See id. Ex. S. On the same day BAE issued the subpoena and deposition notice, Ms. Johnson called Mr. Jordan and revealed that she had deleted, altered, and forged information in her treatment records with Dr. Hayden. Pl.'s Opp. at 5. She also told Mr. Jordan that she was unsure whether the records they sent to BAE — both the copy Mr. Jordan mailed to BAE and the copy she provided to Dr. Siebert at her examination — were the accurate or falsified records. See id. Mr. Jordan had not retained
Mr. Jordan told Ms. Johnson to obtain another copy of her treatment records from Dr. Hayden, which Mr. Jordan sent approximately one week later to BAE. See id.; Pl.'s Opp.App. A. Mr. Jordan sent this copy of her medical records as an attachment to a June 24 letter that addressed alleged deficiencies in the plaintiff's response to several of BAE's interrogatories. Defs.' Mot. Ex. P. The letter did not indicate why the plaintiff was resending what appeared to be a duplicate copy of her treatment records, and a reason was not readily apparent because these treatment records were not directly responsive to any of the interrogatories addressed in the June 24 letter. See id. Mr. Jordan's subtle disclosure led BAE to believe that the attachment was an unredacted copy of the treatment records already in BAE's possession, but with a single additional treatment record dated June 18, 2013. See Defs.' Mot. at 9-10.
It was not until BAE began its preparation for the depositions of Dr. Hayden on July 10 and Ms. Johnson on July 12 that it realized the significance of the attachment to the June 24 letter. While examining this attachment and comparing it to the version BAE received on May 15, they uncovered numerous discrepancies. See Defs.' Mot. at 10. The discrepancies are detailed in a chart (without the accompanying footnotes) that was included in Defendants' Motion for Sanctions. See Defs.' Mot. at 10-12.
Plaintiff does not dispute the allegations in the chart. The Court reprints the chart here without any alteration:
The record establishes not only that Ms. Johnson provided Dr. Siebert with falsified treatment records, but also reveals that her counsel, Mr. Jordan, failed to certify the plaintiff's discovery response and then failed to investigate and correct this deficient and misleading response. In light of Mr. Jordan's failure to comply with his obligation under the discovery rules, the Court finds it necessary to review the discovery obligations outlined in Rule 26, in addition to discussing to nature and limitations of this Court's inherent authority to sanction litigation misconduct.
Rules 26-37 of the Federal Rules of Civil Procedure govern the parties' obligations during the discovery process. Rule 26(g) reinforces the various discovery obligations in Rules 26-37 through its certification requirement. See FED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment ("Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37."). Rule 26(g)(1) requires an attorney — or a party if proceeding pro se — to sign their discovery response. A party receiving an unsigned discovery submission may properly disregard that response. See FED. R. CIV. P. 26(g)(2).
Merely signing a discovery submission, however, does not mean that a party has complied with the certification requirement. An attorney or party has a duty, per Rule 26(g), to perform a reasonable inquiry to determine whether a discovery response is complete and accurate. See FED. R. CIV. P. 26(g)(1); see alsoFED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment ("[T]he signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the
Further, the parties' discovery obligations do not terminate after their initial submission. Rule 26(e)(1) requires parties to timely supplement their discovery responses and disclosures upon learning that their response or disclosure is incomplete or incorrect, if the other party is not aware of the additional or corrective information. See FED. R. CIV. P. 26(e)(1). The obligation to "supplement disclosures and discovery responses applies whenever a party learns that its prior disclosures or responses are in some material respect incomplete or incorrect." FED. R. CIV. P. 26, Advisory Committee Note, 1993 Amendment. The obligation to supplement "applies whether the corrective information is learned by the client or by the attorney." See id.
The Federal Rules of Civil Procedure are not the only authority available for federal courts to police the parties' conduct during discovery. Federal courts have inherent power "to protect their integrity and prevent abuses of the judicial process." Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C.Cir.1995) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)). The inherent power authorizes courts to enter a default judgment, impose fines, award attorneys' fees and expenses, issue contempt citations, disqualify or suspend counsel, permit adverse evidentiary inferences, and preclude the admission of evidence. See id. at 1475. A court's "use of this power should reflect our judicial system's strong presumption in favor of adjudication on the merits." Id.
To exercise its inherent power, a court must satisfy the evidentiary standard applicable to the sanction. See id. at 1476-78. To dismiss a case or enter a default judgment, a court must determine that lesser sanctions would not deter and remedy the misconduct. See id. at 1478-79.
With respect to the first requirement, the burden of proof depends on the severity of the sanction. Our Court of Appeals has subdivided sanctions into two categories: penal sanctions and issue-related sanctions. See id. at 1478. Imposing penal sanctions requires a court to find by clear and convincing evidence that the alleged misconduct occurred. Id. at 1477. Penal sanctions include dismissals, default judgments, contempt orders, awards of attorneys' fees, and fines. In contrast, a court can impose issue-related sanctions after finding by a preponderance of the evidence that the alleged misconduct occurred. Id. at 1478. Issue-related sanctions include adverse evidentiary determinations and preclusion of evidence. Id. at 1478. Second, a court seeking to impose the ultimate sanction of dismissal (or entry of a default judgment) must also "provide a specific, reasoned explanation for rejecting lesser sanctions, such as fines, attorneys' fees, or adverse evidentiary rulings." Id. at 1478; see also Webb v. District of Columbia, 146 F.3d 964, 971 (D.C.Cir. 1998) ("When sanctions are ordered under the court's inherent power, the need to consider less onerous alternatives stems
The D.C. Circuit has set forth "three basic justifications that support the use of dismissal or default judgment as a sanction for misconduct." Webb, 146 F.3d at 971 (D.C.Cir.1998). "First, the court may decide that the errant party's behavior has severely hampered the other party's ability to present his case — in other words, that the other party `has been so prejudiced by the misconduct that it would be unfair to require him to proceed further in the case.'" Id. (quoting Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074 (D.C.Cir.1986)). "Second, the court may take account of the prejudice caused to the judicial system when the party's misconduct has put `an intolerable burden on a district court by requiring the court to modify its own docket and operations in order to accommodate the delay.'" Id. (quoting Shea, 795 F.2d at 1075). "[F]inally, the court may consider the need `to sanction conduct that is disrespectful to the court and to deter similar misconduct in the future.'" Id. (quoting Shea, 795 F.2d at 1077).
Although there are distinct categories of penal and issue-related sanctions, an issue-related sanction can operate as a penal sanction. For example, precluding the only source of evidence available in support of a dispositive issue operates as a dismissal, though it's nominally an evidentiary sanction. See Shepherd, 62 F.3d at 1479. Accordingly, a court should keep in mind the practical effect of its sanction when determining whether that sanction is appropriate.
While BAE is highly critical of the conduct of Mr. Jordan, BAE has not directly asked the Court to sanction the plaintiff's counsel. Nonetheless, during the lengthy sanctions hearing the Court repeatedly put Mr. Jordan on notice that his conduct may warrant sanctions,
Mr. Jordan stated that on May 14, he "put in an envelope, without a cover letter" Ms. Johnson's treatment records with Dr. Hayden, and sent the records to
Thus, the Court concludes that the May 14 discovery response violated Mr. Jordan's obligations under the discovery rules, for three independent reasons. First, Mr. Jordan did not sign this discovery response. As Rule 26(g) makes clear, counsel or a pro se party is required to sign their discovery response, and BAE could have properly ignored an unsigned discovery response. FED. R. CIV. P. 26(g)(2).
Second, even if Mr. Jordan had signed this response, certification would have been improper because Mr. Jordan did not make any inquiry — let alone a reasonable one — before sending the response to BAE. Mr. Jordan's representations in the plaintiff's opposition establishes that he did not even inspect Ms. Johnson's treatment records before sending them to BAE: "[Ms. Johnson] was also uncertain whether the copy of Dr. Hayden's medical records mailed to BAE's counsel on May 14th was the original or the doctored version. [Ms.] Johnson's counsel had not reviewed the records mailed to BAE's counsel on June 14th,
Third, and assuming again that Mr. Jordan had signed the May 14 response, Mr. Jordan violated his duty under the rules by not even retaining a copy of the documents he produced to BAE. Without a copy of the documents, Mr. Jordan was unable to monitor the progress of discovery, or verify the completeness and authenticity
Mr. Jordan cannot justify his actions by citing the need to proceed with haste. The plaintiff and her counsel had been aware since April 4 that Dr. Siebert's examination of the plaintiff was scheduled for May 15. See Defs.' Mot. Ex. D at 1. If the plaintiff and her counsel decided to wait until the day before the examination to send the requested documents, then so be it-but a party cannot create an urgent situation by their own procrastination and thereafter claim that the urgent situation justifies their noncompliance with their discovery obligations. In short, the Court finds that Mr. Jordan's failure to certify the plaintiff's May 14 discovery response was without any justification, let alone a substantial justification.
By May 15, BAE had received two copies of Ms. Johnson's treatment records with Dr. Hayden. BAE received one copy in the mail from Mr. Jordan, and another copy from Ms. Johnson the day of Dr. Siebert's examination. Defs.' Mot. at 5-6. According to the plaintiff's opposition, on June 14, Ms. Johnson informed Mr. Jordan that she had falsified her medical records. Pl.'s Opp. at 5. She also told Mr. Jordan that she was unsure whether either of the prior two sets of documents produced to BAE were "the original or doctored version." Id.
At this point, Mr. Jordan had reason to believe that the medical records he had previously produced to BAE were not authentic documents. Under Rule 26(e)(1)(A), he had a duty to correct the prior production. See FED. R. CIV. P. 26(e)(1)(A) (stating that a party who has responded to a "request for production" must supplement its response in a "timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing"). Had Mr. Jordan retained copies of the documents that were previously produced to BAE, he could have compared those documents with an authentic copy the plaintiff later received from Dr. Hayden. Having failed to retain copies, Rule 26(g)(1) imposed a duty to make a reasonable inquiry to determine whether his prior production included authentic documents, or falsified ones. See FED. R. CIV. P. 26(g)(1). Mr. Jordan did not satisfy his duty to make a reasonable inquiry, nor did he satisfy his duty to correct the prior production.
"The duty to make a `reasonable inquiry' is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances." FED. R. CIV. P. 26, Advisory Committee Note, 1983 Amendment. Even if Mr. Jordan could plausibly claim that he did not have any reason to question the accuracy of the treatment records being produced to BAE on May 14, the circumstances
The Court also concludes that the June 24 discovery response violated Mr. Jordan's duty to correct under Rule 26(e)(1)(A). The obligation to "timely" supplement and thus correct discovery obligations applies when the "disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." FED. R. CIV. P. 26(e)(1)(A).
The Court concludes that sending a supplemental response approximately a week after learning of the prior deficiency is arguably timely under the circumstances.
Mr. Jordan rejoins with the excuse that he did not want to apprise BAE of the "possibility" that Ms. Johnson provided them with falsified records, since he was not certain that falsified records had actually been produced. This excuse simply doesn't cut it. Mr. Jordan should have kept copies of his discovery submissions to BAE, and he should have bates stamped the production. He did neither.
In any event, it is not the duty of this Court to provide legal advice to counsel as to how to fulfill his discovery obligations under Rule 26. Whatever method Mr. Jordan chose to fulfill his obligations, he was required — in some form or fashion — to determine whether there were deficiencies in the prior discovery response and, if so, make counsel for the defendants aware of these deficiencies. As noted above, if not for their own diligence, the defendants' counsel would not have been aware that Ms. Johnson altered the treatment records initially produced to BAE. Because the plaintiff's supplemental response failed to inform the defendants' counsel that the initial response was deficient and provide them with the corrective information, the supplemental response was deficient as a matter of law.
The Court finds by clear and convincing evidence that Ms. Johnson produced to BAE a falsified copy of her treatment records with Dr. Hayden. The Court also finds by clear and convincing evidence that Mr. Jordan failed to certify and correct this production. Having made this evidentiary finding, the Court is authorized to impose both penal and issue-related sanctions.
The parties agree that the Court should sanction the plaintiff, but they disagree on the type of sanction the Court should impose. BAE initially requested the following sanctions: (1) "exclusion of all evidence of and damages for Plaintiff's alleged mental health conditions and treatments"; (2) "if summary judgment is denied and a trial conducted, an adverse inference instruction and that BAE Systems' the ability [sic] to cross examine Plaintiff regarding her fraud, destruction and actual mental health status"; and (3) "monetary sanctions, including attorneys' fees." Defs.' Reply at 12-13. At the sanctions hearing, BAE also orally requested the Court to dismiss the plaintiff's complaint. See Sanctions Hr'g Tr. at 122-23.
Plaintiff suggests the following sanctions: (1) "[Ms.] Johnson be required to appear for another psychiatric examination by Dr. Siebert, at a time and place of his convenience"; (2) "[Ms.] Johnson be required to reimburse BAE for Dr. Siebert's time and expense incurred in re-examining Johnson"; (3) "Dr. Siebert's medical report not be required until 30 days after his second evaluation of Johnson has been completed"; (4) "Discovery be extended for 30 days from the date of the entry of the sanction order"; and (5) "[Ms.] Johnson be fined $250.00 for the disruption of the court's scheduling order and hearing docket." Pl.'s Opp. at 11.
For the reasons discussed below, the Court concludes that dismissal and its functional equivalent are not appropriate. Instead, the Court awards BAE attorneys' fees and costs, finds that an adverse inference instruction is appropriate, and imposes additional discovery obligations upon the plaintiff and her counsel.
As our Court of Appeals has explained, dismissal or entry of default is inappropriate absent a reasoned explanation why lesser sanctions would not deter and remedy the misconduct. Shepherd, 62 F.3d at 1478-79. Defendants' counsel requested during the sanctions hearing that the Court should dismiss the plaintiff's complaint. Although the plaintiff's conduct was egregious, the Court believes dismissal is not appropriate.
In support of its request for dismissal, the defendants rely principally upon Young v. Office of the United States Senate Sergeant at Arms, 217 F.R.D. 61 (D.D.C.2003).
The most significance difference between Young and the matter before this Court is that the offending party in Young "willfully failed to comply with two separate court orders requiring production of her medical records." Young, 217 F.R.D. at 66. In contrast, the instant motion is this Court's initial involvement in the parties' discovery fray. This is not to say that
In addition, the court in Young found clear and convincing evidence of witness tampering, and also found that the plaintiff "specifically asked [her] psychiatrist not to send any of her medical records to her lawyers." Id. (emphasis in original). Here, in contrast, Ms. Johnson has not instructed Dr. Hayden, her primary physician, not to send any of her medical records to her counsel, Mr. Jordan. Nor have the defendants claimed that Ms. Johnson tampered with any witnesses or instructed Dr. Hayden, or any other physician, to disregard the defendants' subpoenas.
The misconduct at issue here also differs from the misconduct in Slate. Although it is true that the court in Slate stated that "fabrication" of evidence "could very well... qualify as a basis, in and of itself, to dismiss this case," Slate, 2013 U.S. Dist. LEXIS 57617, at *61, the court identified several other instances of misconduct that supported the court's decision to dismiss the plaintiff's suit. For example, the court stated that "the plaintiff has made numerous representations to the Court that are diametrically at odds with the documentary evidence present in the record." Slate, 2013 U.S. Dist. LEXIS 57617, at *65. The court also cited a "course of conduct" that "includes, but is not limited to: (1) attempting to fraudulently collect evidence; (2) producing discovery documents in a soiled envelope that had the strong odor of excrement; (3) improperly videotaping his own deposition testimony; and (4) producing voluminous amounts of irrelevant and misleading materials." Slate, 2013 U.S. Dist. LEXIS 57617, at *67-68.
In this litigation, as discussed above, the Court does find that some of Ms. Johnson's representations during the sanctions hearing were not credible; however, the Court has not concluded that Ms. Johnson made repeated misrepresentations to this Court throughout this litigation. Furthermore, this discovery misconduct here has not involved the kind of "course of conduct" that was present in Slate.
Moreover, the court's reasons in Slate for declining to impose lesser sanctions are also significant. Among these reasons, the court concluded that "the fact that the plaintiff is proceeding pro se is a strong indication that he would be unwilling or unable to pay any monetary sanctions leveled against him, and of course he cannot be punished with a suspension or revocation of his license to practice because he has none. Thus, such sanctions are unlikely to be effective in adequately deterring and punishing the plaintiff's misconduct." Slate, 2013 U.S. Dist. LEXIS 57617, at *75. The Court also notes that the plaintiff in Young had been proceeding pro se after her lawyers withdrew from the case. See Young, 217 F.R.D. at 64. Here, Ms. Johnson is not proceeding pro se, and the Court finds that a combination of sanctions will sufficiently deter and punish her misconduct.
The Court finds that the discovery misconduct in Richardson v. Union Oil Co. of California, 167 F.R.D. 1 (D.D.C.1996), is more analogous to the discovery misconduct here. In Union Oil the plaintiff claimed that her husband's death was caused by exposure to chemicals contained in products produced by Defendant Union Oil. Id. at 1-2. Thus, a central issue was whether the products contained a sufficient quantity of the chemical benzene to have caused his death. See id. In response to the plaintiff's discovery requests, the defendant — on two separate occasions
Defendants attempt to distinguish Union Oil by arguing that here, "[Ms.] Johnson has not only altered documents, she has destroyed them, repeatedly lied, and obstructed BAE Systems' ability to learn what should have been basic and immediately provided information." Defs.' Reply at 13. Defendants fail to appreciate that this is the type of misconduct that was present in Union Oil. Furthermore, to the extent the defendants' claim that Ms. Johnson "destroyed" documents suggests that the defendants will forever be without information that was once available, they overstate the prejudice they have suffered. Defendants correctly state that the record indicates Ms. Johnson believed, inexplicably, she possessed the only copies of her treatment records with Dr. Hayden and, consequently, believed "destroying" her copy removed all traces of this evidence. Despite Ms. Johnson's intent, however, the original medical records were still available and the defendants have in fact received a copy of these records. Ms. Johnson's intent, though reprehensible, is not a sufficient basis to impose dismissal as a sanction for misconduct that warrants lesser, though sufficiently severe, sanctions.
Furthermore, in Union Oil, as here, counsel "learned of the discovery misconduct and obtained the accurate data well in advance of trial," and therefore their "ability to present her full case to the jury was not compromised in any way." Union Oil, 167 F.R.D. at 5. The Union Oil court also acknowledged that the plaintiff's case "would have been seriously (if not fatally) weakened" absent their diligence, but concluded that her counsel's diligence prevented this from occurring. The diligence of BAE's counsel also prevented the same prejudice here.
Finally, dismissal is not warranted for another reason. After "`calibrat[ing] the scales'" to determine whether the severely penal nature of dismissal "corresponds to [Ms. Johnson's] misconduct," as required by our Court of Appeals, see Shepherd, 62 F.3d at 1479, the Court concludes that it does not. Plaintiff's misconduct, though egregious, contaminates only the facts in support of her damages claim. As BAE concedes, "[Plaintiff's] discovery abuses and lies do not directly pertain to the issue of liability." Pl.'s Mot. at 21. Thus, at this stage of the litigation, the plaintiff's discovery misconduct has not tainted her theory of liability, and therefore dismissal of her case is not commensurate with her misconduct.
Defendants ask this Court to impose the "issue-related" sanction of "exclusion of all evidence of and damages for Plaintiff's alleged mental health conditions and treatments." Defs.' Reply at 12-13. The Court finds that this sanction is the functional equivalent to dismissal because the damages element of the plaintiff's remaining claims depends almost exclusively on the jury finding that the plaintiff suffered emotional harm. For the reasons discussed above, however, dismissal is inappropriate.
The Court appreciates the defendants' concern that the plaintiff cannot be trusted to produce all responsive documents and identify information regarding her prior medical history. See Defs.' Mot. at 22-23. The Court finds that the plaintiff has been evasive, manipulative, and hardly credible during the sanctions hearing before this Court. Nevertheless, the Court concludes that the appropriate sanction is to inform the jury, through an adverse inference instruction, of the plaintiff's manipulation of the evidence. Furthermore, the defendants do not have to rely on the plaintiff's representations and discovery responses to reconstruct her medical history. They can continue to subpoena and thus rely on third parties, which in turn should lead to additional and complete information about the plaintiff's medical history.
(1) The Court admonishes Plaintiff and her counsel that any further incomplete or misleading discovery responses will result in severe sanctions, including potentially dismissal of her claims and referral to disciplinary authorities.
(2) The Court ORDERS that BAE is entitled to an adverse inference instruction. A sample instruction is attached to this Memorandum Opinion and Order.
(3) The Court ORDERS that Mr. Jordan is to (i) completely manage and control further document production and conduct all communications with any third parties regarding discovery and (ii) directly retrieve all documents from third parties in the future. Further, the Court ORDERS that Mr. Jordan is to perform both obligations without using Ms. Johnson as an intermediary.
(4) The Court ORDERS that Defendants are entitled to
(5) ORDERED that Defendants are entitled to recoup Dr. Siebert's fee for the time spent examining Plaintiff on May 15. Ms. Johnson is ORDERED to pay 100% of the fees.
(6) ORDERED that Defendants are to craft an interrogatory and document request regarding Ms. Johnson's past mental health history and medications. Plaintiff's interrogatory response must be signed by Ms. Johnson, and Mr. Jordan must prepare and sign the response to the document request. Mr. Jordan must submit his response to the document request in a format substantially similar
The Court further ORDERS that the responses to the interrogatory and the document request shall include
Further ORDERED that the parties meet and confer in an attempt to determine the amount of attorneys' fees owed by Ms. Johnson and Mr. Jordan. If the parties are unable to resolve the issue, by no later than December 13, 2013, BAE shall prepare and file a report detailing the relevant attorneys' fees, and the Court will determine the appropriate amount of attorneys' fees. The parties shall thereafter appear for a hearing on December 20, 2013, at 9:30 A.M. to set dates for a Pretrial Conference and for trial.
SO ORDERED.
For the foregoing reasons, BAE's Motion for Sanctions is
SO ORDERED.
Evidence has been presented during the trial indicating that the Plaintiff falsified some of her medical records during the discovery period leading up to this trial, and that she provided these falsified records to the Defendant's expert witness, Dr. Seibert, during his examination of her prior to this trial. In addition, evidence has been introduced indicating that the Plaintiff provided false or misleading information about her medical and mental health history to Dr. Seibert during his examination of her prior to trial, and that the Plaintiff provided false or misleading testimony when questioned under oath about these matters prior to this trial. To the extent that any of these matters are in dispute, it is your duty to find where the truth lies.
As a result, I instruct you that you may, but are not required, to find that: 1) the Plaintiff has failed to fully and completely disclose her medical and mental health history to the Defendant, and 2) if the
See Slender v. Vincent, 92 Haw. 355, 992 P.2d 50 (2000); D.C. Std. Civ. Jury Instr. No. 3-6; D.C. Std.Crim. Jury Instr. No. 2.206.
