JANET BOND ARTERTON, District Judge.
Defendant Wells Fargo Bank, N.A. ("Wells Fargo") moves [Doc. # 133] for discovery sanctions against Plaintiff James Davis pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) and (C), claiming that Plaintiff has failed to serve adequate and timely responses to Wells Fargo's interrogatories and requests for production, properly preserve evidence and engaged in misconduct in spoliating evidence, and adequately comply with this Court's October 20, 2015 discovery order [Doc. # 90]. Accordingly, Defendant asks this Court to (1) either dismiss Mr. Davis's action against it or to impose the sanction of an adverse inference instruction, and (2) order Plaintiff to pay Wells Fargo's reasonable expenses and attorney's fees. Oral argument was held on March 16, 2016. For the following reasons, Defendant's motion is granted in part and denied in part.
Plaintiff filed this case on July 31, 2012. Wells Fargo served its First Request for Production of Documents and First Set of Interrogatories on Plaintiff on May 30, 2015, and again on March 18, 2014, following a stay of the litigation. (See First Bizar Aff. [Doc. # 86-1] ¶¶ 3-4; Mar. 18, 2014 Email, Ex. A to First Bizar Aff. at 1) Having received no response, on May 19, 2014, Wells Fargo asked Plaintiff's counsel when it could expect a reply. (See id. ¶ 5; May 19, 2014 Ltr., Ex. B to First Bizar Aff. at 1.) On June 13, 2014, Plaintiff's counsel notified Wells Fargo that while he had "already delivered to [it] the various documents in [his] possession and control that are relevant in connection with [his] Rule 26 obligations[,] [u]nderstanding [that] much of this was informal and in connection with settlement discussions, [he would] again provide [Wells Fargo] with these documents and a formal response to [its] production," as well as "responses to the outstanding interrogatories" "on or before July 3, 2014." (June 13, 2014 Ltr., Ex. D to First Bizar Aff. at 1.) On July 2, 2014, Plaintiff's counsel asked for "a couple more days." (July 2, 2014 Email, Ex. E to First Bizar Aff. at 1.) However, it was not until September 10, 2014 that Plaintiff's counsel sent any responsive information, and that information was limited to "a link to some photographs." (First Bizar Aff. ¶ 10.)
On February 23, 2015, the Court entered a revised scheduling order [Doc. # 69] requiring Plaintiff to "complete responses to Wells Fargo['s] outstanding written discovery" by March 4, 2015. On March 12, 2015, Plaintiff finally responded to Wells Fargo's interrogatories, but the responses were not verified, as required by Federal Rule of Civil Procedure 33(b). (First Bizar Aff. ¶ 11.) Plaintiff's March 2015 letter additionally enclosed 348 pages of documents, but it failed to indicate which documents were responsive to which document requests. (Mot. for Sanctions at 4; see First Bizar Aff. ¶ 11.) In August 2015, Plaintiff produced an additional 388 pages of documents. (First Bizar Aff. ¶ 16.)
On September 8, 2015, Wells Fargo, maintaining that Plaintiff's discovery responses were inadequate, filed a motion to compel [Doc. # 86], which was granted [Doc. # 90] by Magistrate Judge Margolis, absent opposition, by text order on October 20, 2015, with an order that Plaintiff comply by November 23, 2015. The motion to compel sought a court order requiring Plaintiff to: (a) "provide an under oath verification of his responses" to interrogatories; (b) "correct the defects in his responses and fully respond to Wells Fargo's Interrogatories," specifically, with respect to numbers 2, 4, 5, 7, and 13-17
Wells Fargo received revised responses from Plaintiff to Hunt Leibert's requests for production on November 30, 2015 (though the document was dated November 20, 2015), which identified which documents that had already been produced were responsive to which questions.
Plaintiff did not provide a sworn verification of his responses to the interrogatories until December 17, 2015, three weeks after it was due. (See Stern Aff. ¶ 7a; Ex. B to Stern Aff.) He did not supplement his responses to the interrogatories until January 4, 2015, more than a month and a half after it was due. (See Stern Aff. ¶ 7b; Ex. C to Stern Aff.) Finally, he did not provide explanations for his failure to produce documents requested until March 1, 2016, after Defendant had filed its motion for sanctions. (See Ex. E to Stern Aff.)
Federal Rule of Civil Procedure 37(b)(2)(A) enables a court in a pending action to impose sanctions on a party for failure to comply with a discovery order, including:
"Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(b)(2)(C). "Where, as here, the nature of the alleged breach of a discovery obligation is the non-production of evidence, a district court has broad discretion in fashioning an appropriate sanction. . . ." Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002).
Defendant raises five primary grounds for an award of sanctions: (1) Plaintiff's failure to provide complete and timely responses to Wells Fargo's interrogatories (Mot. for Sanctions at 13); (2) Plaintiff's failure to provide written responses to Defendant's requests for production, including explanations for Plaintiff's inability to produce any document (id. at 15); (3) Plaintiff's failure to search for and produce emails relevant to his complaint; to make his computers and smart phones available to a neutral forensic analyst; and to sign consent forms to accompany subpoenas to his internet service provider (id. at 13-14); (4) Plaintiff's failure to produce any documentation concerning the dates he was deployed at sea (id. at 15); and (5) Plaintiff's failure to produce any documents concerning his mental or emotional state since January 1, 2006, or showing the date of his family's move to Maine (id.). Each of these is discussed below.
Defendant first takes issue with Plaintiff's failure to identify documents relevant to Interrogatories 2 and 4 (seeking the names and contact information of all persons with knowledge of facts related to Plaintiff's claims and information about Plaintiff's employment history), as well as with his responses to Interrogatories 13-17 (seeking the factual basis for each of his claims).
Upon reviewing Plaintiff's responses, the Court finds them to be largely adequate, at least with respect to Interrogatories 13-17. However, Plaintiff's failure to identify documents relevant to Interrogatories 2 and 4 or explain his failure to do so, and his repeated disregard for Court-imposed deadlines for the production of discovery is concerning.
Defendant next contends that Plaintiff's failure to provide Court-ordered responses to document requests merits sanctions. However, Plaintiff's counsel has explained, and Defendant's counsel acknowledged, that the parties agreed that Plaintiff's responses to Hunt Leibert's document requests would suffice. In light of this agreement, Defendant can hardly now complain that Plaintiff failed to provide written responses to document requests.
Defendant additionally alleges that Plaintiff's failure to provide his computers and smart phones, consent for a subpoena of his internet service provider, and his emails warrants sanctions. Plaintiff has, however, provided reasonable explanations for his failure to produce the computers, smart phones, and emails. As Plaintiff explained in the affidavit he submitted in response to this motion (and to some extent during his August 12, 2015 deposition, see Ex. I to First Bizar Aff.), all of the computers and smart phones used by him or his wife during the relevant time period were damaged and discarded before Plaintiff commenced this lawsuit; he did not keep printed copies of any emails; and all stored email traffic he received while deployed would have been destroyed before he got off the ship. (Davis Aff. [Doc. # 141] ¶¶ 15-23.)
What Plaintiff does not adequately explain is his failure to provide consent for his internet service provider to obtain his emails. His claims that he called AOL himself and that he has not been presented with a consent form to sign (see id. ¶ 25), while perhaps true, are not sufficient. It was up to Plaintiff's counsel to enable his client to comply with the Court order to by preparing for execution a consent form for Plaintiff and his wife; he cannot satisfy that obligation by having the Plaintiff call AOL himself.
Wells Fargo next contends that Plaintiff's failure to produce documentation verifying the dates he was deployed is grounds for the imposition of sanctions. While, once again, Defendant is undoubtedly correct that Plaintiff's counsel did not comply with his discovery duties when he failed to provide any timely explanation for his failure to produce the requested documents, Plaintiff's explanation for not producing the requested documentation is reasonable.
Finally, Defendant asserts that Plaintiff's failure to produce documents concerning his emotional state or establishing the date of his family's move to Maine merits sanctions. It is, however, not apparent what documents Defendant believes Plaintiff is withholding with respect to his mental or emotional state. He has provided his Naval medical records and HIPPA authorizations for his medical treatment, and it is not clear what else he could offer. Further, with respect to the family's move to Maine, the Court is not persuaded that the document request Defendant highlights should have prompted Plaintiff to produce documents demonstrating his move date. Request 20, to which Defendant points, asks for all "documents reflecting your military service from January 1, 2006 to present, including but not limited to documents evidencing your dates of deployment." Why this would prompt Plaintiff to produce documents showing the date his family moved to Maine is not apparent.
Defendant urges the Court to dismiss this case as a sanction for Plaintiff's failure to comply with the Court's discovery orders, or in the alternative, to impose an adverse inference and attorneys' fees. The Court declines to dismiss the case or impose an adverse inference, but it does find an order of attorneys' fees to be appropriate, as explained below.
"[D]ismissal `is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.'" Carter v. Jablonsky, 121 F.App'x 888, 889 (2d Cir. 2005) (quoting John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988)). In determining whether the imposition of dismissal is appropriate as a sanction, courts consider "(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of . . . noncompliance." Agiwal v. Mid Island Mortgage Corp., 555 F.3d 298, 302 (2d Cir. 2009).
In this case, given the lack of prejudice Defendant has suffered due to Plaintiff's failure to timely comply with the Court's order, the reasonableness of most of Plaintiff's explanations for his failure to produce the requested documents, and the Court's belief that lesser sanctions would be effective, the Court does not find dismissal to be an appropriate sanction.
Defendant alternatively seeks an adverse inference instruction both for Plaintiff's failure to produce documents and for his alleged destruction of his computers and cell phones. "[W]here, as here, an adverse inference instruction is sought on the basis that the evidence was not produced in time for use at trial, the party seeking the instruction must show:"
Residential Funding Corp., 306 F.3d at 107 (internal quotation marks omitted). Similarly, "a party seeking an adverse inference instruction based on the destruction of evidence must establish:"
Id. (internal quotation marks omitted).
As discussed above, the majority of non-compliance here consisted of a failure to abide by Court-imposed deadlines and a failure to affirmatively provide explanations for documents Plaintiff could not produce because they had been destroyed before this litigation was commenced or because Plaintiff did not possess them or legally could not produce them. With the exception of the consent forms, there is little Plaintiff did not produce that he could have and should have produced. As such, an adverse inference instruction is not warranted at this time.
Plaintiff's counsel is ordered to prepare an appropriate consent form for Plaintiff and his wife to sign so that Defendant may subpoena their emails from AOL. That consent form must be delivered to Defendant within
Finally, Defendant seeks an award of the attorneys' fees and costs expended in preparing this motion and its motion to compel. Rule 37(b)(2)(C) provides that a court "must" order a party, its attorney, or both, who fails to abide by discovery orders to "pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Because it appears that much of the responsibility for Plaintiff's failure to comply with the Court's discovery orders lies with his attorney, the Court orders Plaintiff's counsel to pay reasonable attorneys' fees and costs expended in litigating the motion to compel and those portions of the motion for sanctions on which Defendant prevailed, to the extent work on non-successful claims can be separated from work on successful claims.
For the foregoing reasons, Defendant Wells Fargo's Motion for Sanctions is GRANTED in part and DENIED in part. Plaintiff's counsel is ordered to prepare a consent form for Plaintiff and his wife to sign so that Defendant may subpoena their emails from AOL, and to deliver that consent form to Defendants within
Defendant is directed to file an application for attorneys' fees and costs outlining the reasonable fees and costs expended in litigating the motion to compel and those portions of the motion for sanctions on which Defendant prevailed within
IT IS SO ORDERED.
Although Plaintiff did produce some responsive documents, he did not produce any emails, and he provided no explanations for his failure to produce documents with respect to all of the requests.
