Federal Bar Update: Recent federal opinions address recurring discovery issues

March 25, 2015

FedBarMaley-sigIn recent months several opinions from Indiana federal judges have addressed recurring issues in discovery.

Meet and confer – In O’Connell v. Taco Bell of America, Inc., 1:14-CV-01218-SEB-TAB (S.D. Ind. Feb. 20, 2015), after the requisite seven-day pre-service notice period of Local Rule 45-1, defendant served a third-party document request and subpoena on a third-party witness. Plaintiff moved to quash.

Magistrate Judge Tim Baker denied the motion, ruling first, “Failure to comply with Local Rule 37-1 will lead to motions being ‘summarily denied.’ Davis v. Carmel Clay Sch., 2013 WL 2159476, at *2, n.1 (S.D. Ind. May 17, 2013). At the least, Local Rule 37-1 requires ‘an attempt to fully exchange views before filing discovery motions.’ Loparex, LLC v. MPI Release Technologies, LLC, 2011 WL 1871167, at *2 (S.D. Ind. May 16, 2011). Here, Plaintiff completely ignored Local Rule 37-1 when filing this motion to quash, and failed to include the requisite ‘statement setting forth the efforts taken to resolve the dispute.’ Plaintiff’s counsel has litigated many cases in this Court. His failure to comply with well-known prerequisites to filing a motion to quash is both surprising and disappointing. As a result of these shortcomings, the Court denies Plaintiff’s motion to quash.”

Judge Baker further ruled that the plaintiff failed to provide detail as to why each document request was overly broad, unduly burdensome or not relevant, noting that this is the burden of the party objecting to discovery.

Sanctions for thwarting discovery – In Houston v. C.G. Security Services, Inc., 302 F.R.D. 268 (S.D. Ind. Sep. 16, 2014), Magistrate Judge Debra McVicker Lynch issued a report and recommendation on discovery issues that Judge William Lawrence adopted. Judge Lynch had recommended that sanctions be imposed “against CG and in favor of plaintiff Houston requiring CG to pay Houston reasonable attorneys’ fees for the work of her counsel in the conduct of discovery since CG became a party to this litigation, including fees incurred in presenting her motions for sanctions.” Defendant filed a Rule 72 objection to the report.

On review, Judge Lawrence noted at the outset, “As is clear from the Report and Recommendation, much of the discovery dispute in this case involved Ms. Houston’s numerous attempts to obtain accurate information regarding who actually worked for C.G. Security as security guards on the night in question. Specifically, Ms. Houston desired their names and contact information, where they worked (i.e., their location during the New Year’s Eve party), the hours they worked, and their qualifications. Her quest began in early 2013, when she served interrogatories and requests for document production on C.G. Security; unfortunately, it took until late December 2013 for Ms. Houston to obtain the most accurate information. In addition to this, the magistrate judge discussed two specific instances where C.G. Security provided false and/or evasive testimony, and noted the ‘unprofessional’ conduct of C.G. Security’s counsel during a deposition.”

Defendant first complained in its Rule 72 objection that plaintiff’s counsel had not met and conferred prior to the motion or sanctions. Judge Lawrence did not agree, writing, “Magistrate Judge Lynch held a discovery conference … to address outstanding discovery issues; however, this conference was postponed so the parties could confer with each other: ‘Based on the breadth of the parties’ discovery issues and because they had not meaningfully conferred with each other about all of them, the court directed the parties to attempt to reach agreement.’ Among Ms. Houston’s discovery issues that were to be addressed at this conference was C.G. Security’s failure to disclose the above-mentioned information regarding its security guards. At the very least, therefore, this indicates that Ms. Houston ‘met and conferred’ with C.G. Security in late May 2013 – prior to filing the motions for sanctions in an attempt to resolve the discovery disputes. Moreover, as Ms. Houston notes, her motions for sanctions outline the steps she took to satisfy the meet and confer requirement. The Court also notes that some of the complained of conduct, i.e., deposition behavior, is not necessarily a ‘discovery dispute’ for which a meet and confer is warranted; since the distasteful behavior already occurred, it is unlikely that the issue would be resolved by meeting and conferring with opposing counsel.” (emphasis by Judge Lawrence)

Defendant next objected that “it should not be sanctioned because it did not violate a court order.” Judge Lawrence disagreed: “This is also not accurate. C.G. Security was ordered by Magistrate Judge Lynch on June 5, 2013, to provide Ms. Houston with the pertinent information she sought regarding the security guards:

The plaintiff is entitled to determine which CG employees actually worked and when during the New Year’s Eve Ball, and to be provided with their names, addresses, telephone numbers, and job titles… CG must provide information described in this entry regarding its employees who worked the New Year’s Eve Ball and the extent of its financial “dependence” on the Hyatt by June 14, 2013.

Ms. Houston was under no obligation to seek any additional court orders regarding this information. C.G. Security should have produced it in March when Ms. Houston first requested it; at the very least, it was to be produced in June pursuant to a court order.” (emphasis in original)

Next, Judge Lawrence noted, “With regard to C.G. Security’s other sanctionable conduct noted in her Report and Recommendation – providing false and evasive testimony at depositions. Mr. Guynn did not need to be under a court order to provide truthful and accurate information; this is an obligation one always has when providing testimony under oath. C.G. Security’s attempts to shift the blame to Ms. Houston are unpersuasive.”

Lastly, Judge Lawrence commented on the amount of sanctions: “C.G. Security argues that it is ‘not appropriate’ that it may have to pay sanctions in an amount that ‘could well exceed the injury value in this case if there had been a finding of liability on CG.’ The Court disagrees. As Magistrate Judge Lynch aptly noted, ‘[t]he fact that CG has a meritorious defense to Ms. Houston’s claims does not excuse discovery misconduct, of course. It indeed starkly demonstrates how particularly unwise it is to obstruct the discovery process.’ C.G. Security’s actions in this case were inexcusable and reflect a serious lack of effort to meet its obligations to provide truthful and timely information. A sanction of this magnitude is thus warranted.”

Judge Lawrence thus denied the objection, and directed plaintiff to file a fee petition.

Sanctions for violation of protective order – In Crissen v. Gupta, 2014 U.S. Dist. LEXIS 126719 (S.D. Ind. Sep. 10, 2014), sanctions were assessed for counsel’s violation of a protective order, with the court directing counsel to pay fees and costs of the other party bringing the sanctions motion. Upon review of the fee petition, Judge Jane Magnus-Stinson awarded $21,443.50 in fees, denying $545 in clerical time. The opinion has a wealth of precedent and analysis on fee petitions, including this passage, “The Court also notes that the Gupta Defendants have paid the fees reflected in the Fee Petition in full. [Filing No. 245 at 4.] In the Seventh Circuit, ‘the best evidence of whether attorney’s fees are reasonable is whether a party has paid them.’ Cintas Corp., 517 F.3d at 469 (citation omitted); see also Balcor Real Estate Holdings, Inc. v. Walentas-Phoenix Corp., 73 F.3d 150, 153 (7th Cir. 1996) (‘the best guarantee of reasonableness is willingness to pay’).”

Save the dates – The 7th Circuit Conference will be held May 3-5 in Milwaukee. Registration is live at www.7thcircuitbar.org.

The 2015 annual federal civil practice seminar sponsored by the Federal Bar Association will return Dec. 18.•


John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.


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