The shark image can only mean one thing – it’s time for Shark Week on the Discovery Channel!  Which also means it’s time for eDiscovery Case Week on eDiscovery Today, where we’ll cover five cases in the next five days!  In Heath v. Vill. of Cent. City, No. 3:22-cv-3120-DWD (S.D. Ill. June 14, 2024), Illinois District Judge David W. Dugan granted the plaintiff’s motion for sanctions in part, ordering Defendants’ attorney “to pay the reasonable expenses, including attorney fees, associated with Plaintiff’s preparation of the Motion for Sanctions” for failing to timely comply with the Court’s Discovery Order.

Case Background

In this case, the parties submitted a Joint Written Discovery Report (JWDR) and a Supplemental JWDR, but these failed to comply with the Court’s Case Management Procedures, so the parties were directed to meet, confer, and further report on their discovery disputes in a compliant JWDR. The parties did so; therefore, Plaintiff was granted leave to file a Motion to Compel and Defendants had until April 1, 2024, to file a Response. Plaintiff filed its Motion to Compel on March 20, 2024, but Defendant did not file a Response. On April 19, 2024, the Court resolved Plaintiff’s Motion to Compel largely in his favor. Defendants were directed to take nine specific actions toward compliance in discovery.

Subsequently, Plaintiff filed a Motion for Sanctions under Federal Rule of Civil Procedure 37, claiming that Defendants failed to comply with eight of the nine directives from the Court’s Discovery Order. They requested the following sanctions: (1) bar Defendants from using or mentioning Karlie Patten’s written complaints, or their contents, about Plaintiff; (2) again order Defendants to fully comply, within 5 days, with the directives in ¶¶ 2-8 of its Discovery Order at Doc. 38; (3) deem it admitted by Defendants that “[b]etween April 5, 2021, and April 21, 2021, plaintiff and Mayor Buchanan decided that Officer Patten’s discipline would be a one-day suspension and write-up”; (4) grant Plaintiff 5 days to review and assess Defendants’ attempted compliance with (2); and (5) order Defendants to pay Plaintiff the attorney fees associated with his attempts to secure compliance in discovery.

In a Response, Defendants informed the Court that they “did not respond to the Motion to Compel…because Counsel for the Defendants felt…[it] was justified.” Defendants’ attorney also indicated he “continued to work in an effort to respond to the outstanding discovery”, but that it was a “monumental task” of timely responding to discovery. Defendants contended that (1) Plaintiff was informed Defendants were, in good faith, “gathering additional documents which would be provided in response to the court’s order,” and (2) Defendants complied “with all outstanding discovery issues as described in this Court’s Discovery Order” by May 3, 2024. Although Defendants’ compliance did not occur within 10 days, as required, Defendants request a finding that their supplemental responses were timely due to good cause and excusable neglect under Federal Rule of Civil Procedure 6(b).

Judge’s Ruling

In assessing the parties’ handling of discovery issues, Judge Dugan stated: “Now, the Court must impress upon the parties its belief that these discovery disputes, which do not present any unusual degree of difficulty, have been ongoing for far too long…After all, the parties failed to make use of the Court’s Case Management Procedures, which ordinarily facilitate the resolution of discovery disputes by experienced counsel without the Court’s intervention or handholding on routine and noncomplex matters. Plaintiff was forced to obtain leave of the Court to brief a Motion to Compel, on which he was almost entirely successful. As shown by the Court’s Discovery Order on that Motion, Defendants’ positions, as gleaned from the parties’ Joint Written Discovery Report, were largely untenable.”

Continuing, he said: “Nevertheless, Defendants ignored the timeline that was clearly set forth in the Court’s Discovery Order and, according to Plaintiff’s Reply, still have failed to satisfy their discovery obligations. To be clear, the untimeliness was a choice by Defendants. They did not seek an extension of the time to comply with the Discovery Order, which the Court likely would have freely given. Instead, they now seek a finding of good cause and excusable neglect under Rule 6(b). In other words, as the old adage goes, Defendants choose to seek forgiveness rather than permission. This was a miscalculation. The Court cannot ignore that Defendants’ dithering has now resulted in both a stall of discovery and disobedience, at some level that may still need to be determined, of the Court’s Discovery Order. Again, Plaintiff alleges, even setting Defendants’ untimeliness aside, the supplemental responses remain noncompliant with their discovery obligations.”

So, Judge Dugan found Defendants’ attorney at fault for failing to timely comply with the Court’s Discovery Order and stated: “Defendants’ attorney is DIRECTED to pay the reasonable expenses, including attorney fees, associated with Plaintiff’s preparation of the Motion for Sanctions.” He also issued a warning to the parties, as follows: “the parties are WARNED that the failure to seek a resolution of the discovery disputes under the Court’s Case Management Procedures, in good faith and without further judicial involvement, or to comply with prior directives on these matters, may result in further Rule 37(b) sanctions.”

So, what do you think? Are you surprised the Court issued a fees sanction to the attorney and not to the Defendant? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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