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Full Opinion
ORDER
Magistrate Judge Janice M. Stewart filed Findings and Recommendation (# 96) on September 18, 1996, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judgeâs Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judgeâs report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).
Defendants have timely filed objections. I have, therefore, given de novo review of Magistrate Judge Stewartâs rulings.
I find no error. Accordingly, I ADOPT Magistrate Judge Stewartâs Findings and Recommendation (# 96) dated September 18, 1996, in its entirety. Plaintiffsâ motions for sanctions (# # 55 and # 57-2) are GRANTED as follows: (1) defendantâs attorney, Assistant Attorney General Kendall M. Barnes, is ordered to pay to plaintiffs their expenses in the sum of $7,026.00, and (2) this court publicly reprimands Mr. Barnes by publishing its order.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
On June 18, 1996, plaintiff Vickie Lee filed a Motion for Sanctions (docket # 55) based upon defendantsâ failure to cooperate in scheduling depositions, to timely file an Answer, and to timely and completely respond to plaintiffsâ request for production of documents. On June 24, 1996, when defendants failed to appear for duly noticed depositions, both plaintiffs filed Motions to Compel and for Sanctions (docket # 57-1 and # 57-2). On June 25, 1996, this court granted the Motion to Compel (docket # 57-1) in part and set both motions for sanctions for decision on July 15, 1996, after the close of discovery.
Due to problems completing discovery, this court issued an order on July 2, 1996, resetting the motions to August 19, 1996, and ordering defendants to file their response by August 5, 1996. Defendants filed their response almost two weeks late on Au
For the reasons set forth below, this court recommends that plaintiffsâ motions for sanctions be granted.
DISCUSSION
Plaintiffs seeks monetary sanctions against defendants in the sum of $10,000.00 pursuant to FRCP 37(a)(4)(A), (b), and (d), FRCP 26(g), and the courtâs inherent authority. Because each of the subsections of FRCP 37 and FRCP 26(g) targets a particular form of misconduct for which sanctions may be awarded, each must be analyzed separately.
I. FRCP 37(d)
A. Standard
FRCP 37(d) authorizes the court to impose sanctions against a party who fails: (1) to attend a duly noticed deposition, (2) to serve answers or objections to interrogatories properly submitted under FRCP 33, or (3) to serve a written response to a request for inspection properly submitted under FRCP 34. Sanctions are mandatory for failure to attend a noticed deposition or to respond to a request for production of documents unless the court finds that the failure was âsubstantially justified or that other circumstances make an award of expenses unjust.â FRCP 37(d).
âThe burden of establishing substantial justification is on the party being sanctioned.â Telluride Mgmt. Solutions, Inc. v. Telluride Inv. Group, 55 F.3d 463, 466 (9th Cir.1995). The phrase âsubstantially justifiedâ does not mean â âjustified to a high degree,â but rather has been said to be satisfied if there is a âgenuine dispute,â or âif reasonable people could differ as to [the appropriateness of the contested action.]â â Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (brackets in original; citations -deleted). However, FRCP 37(d) explicitly eliminates the excuse that âthe discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c).â
Unlike FRCP 37(b), neither entry of a discovery order nor a finding of bad faith is a prerequisite for imposing sanctions under FRCP 37(d). Halaco Eng. Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988); Telluride, 55 F.3d at 466.
B. Violations
As detailed below, defendants have committed two violations of FRCP 37(d). It is undisputed that defendants failed to attend depositions duly noticed by plaintiffs on June 24 and 25, 1996. In addition, despite repeated requests, defendants still have not submitted a written response to Plaintiffsâ First Request for Production of Documents (âFirst Requestâ) dated April 19, 1996. Supplemental Declaration of Jackie Sanders (âSanders Supp. Dec.â), 112.
The record reveals that plaintiffs have satisfied the prerequisite to an award of sanctions under FRCP 37(d) in that they attempted to first resolve the issues without judicial intervention.
1. Failure to Attend Depositions
After this case had been pending for nine months and after disposition of defendantsâ motions to dismiss, this court held a scheduling conference on January 24, 1996. At-that conference and after consultation with counsel, this court ordered the parties to complete depositions by March 20, 1996. However, defendantsâ attorney, Assistant Attorney General Kendall M. Barnes, failed to cooperate with plaintiffs, appearing pro se at that time, to schedule depositions. Plaintiffs
Mr. Barnes did not respond to repeated inquiries and demands by plaintiffs to schedule depositions by the deadline. Lee Dec., 1Ă 6 and Exhibits E and F; Affidavit of Jackie Sanders in Support of Plaintiffsâ Motions for Sanctions (âSanders Aff.â), HH 4-8 and Exhibits A-B. Only after Mr. Sanders requested another scheduling conference with the court, did Mr. Barnes respond and agree to schedule depositions for June 10-12, Ă996. Sanders Aff., 11117-8 and Exhibits C and D. This court held another scheduling conference on June 5, 1996, and reluctantly extended discovery until June 28,1996. According to this courtâs notes of that conference, Mr. Barnes confirmed the scheduling of depositions for defendant Stephen Walters on June 10, two or three others possibly on June 11, and Steve Barham on June 12, with dates yet to be set for the remaining two or three defendants. Id, H 9. This court warned the parties that no further extensions would be granted and sanctions would be imposed if the parties did not complete discovery by June 28, 1996. Id.
Again Mr. Barnes failed to respond to Mr. Sandersâ efforts to schedule depositions, prompting Mr. Sanders to file yet another motion for sanctions on June 10, 1996. Id, UH 10-16. In response, Mr. Barnes promised, but failed, to provide Mr. Sanders with a new deposition schedule, although tentatively agreeing to set depositions for the week of June 24, 1996. Id, 111116-18 and Exhibits F-H. Not receiving any further word from Mr. Barnes and with the discovery deadline looming, Mr. Sanders on June 19, 1996, finally felt compelled to fax Mr. Barnes a notice setting five depositions (of defendants Joanne McAdam, Laura Fine, Richard Reid, George Rankins, and Brad Higbee, who are all current or former member of the Oregon Racing Commission)
On Thursday, June 20, 1996, Mr. Barnes began trying to contact the five defendants to determine if they were available on June 24 or 25, 1996, and learned that most of them were in an Oregon Racing Commission meeting in southern Oregon. Affidavit of Kendall Barnes (âBarnes Aff.â), 114. Not having heard from Mr. Barnes, Mr. Sanders called him on Friday, June 21, 1996. Sanders Aff., U21. Mr. Barnes advised that he had a conflict on June 24, 1996, and did not know if his clients were available on June 24 or 25, 1996. Id. In a later telephone conversation that same day, Mr. Barnes proposed alternative dates of June 27 and 28, 1996, for the depositions, but could not confirm his clientsâ availability. Id, HH 22-23.
At this point, the recollections of Mr. Sanders and Mr. Barnes diverge. Mr. Sanders recalls that he told Mr. Barnes that the depositions were still scheduled for June 24 and 25, 1996, and that he could either attend or move for a protective order, to which Mr. Barnes responded with a cryptic âThen thatâs wdrat weâll doâ and hung up. Id, 1128. Mr. Barnes did not subsequently seek a protective order. Id, 1129. As a result, Mr. Sanders believed that, in the absence of a protective order, he had no choice but to attend the noticed depositions or risk being sanctioned himself for failure to appear if Mr. Barnes showed up with at least one deponent. Id, 1130.
Mr. Barnes explains in his first affidavit that he did not attend the depositions on June 24 or 25, 1996, because âMr. Sanders undeniably understood that I had not been able to talk to the witnesses he had noticed for depositions.â Barnes Aff., 114. In his second affidavit, Mr. Barnes adds that he believed that âarranging for the depositions on June 27 and 28, 1996, was acceptable to plaintiffsâ and that he âunderstood Mr. [Sanders] to have acknowledged that we
Neither Mr. Barnes nor any of the deponents appeared for depositions on Monday, June 24, 1996. Id, 1131. When called by Mr. Sanders that day, Mr. Barnes stated that he would not attend, admitted that he had never filed for a protective order, and, according to Mr. Sanders, remarked that he was simply too busy to do that. Id. In neither of his two affidavits does Mr. Barnes specifically deny Mr. Sandersâ recollection of this conversation.
2. Failure to Produce Documents
On April 24, 1996, Mr. Barnes promised to provide a time line for production of documents no later than April 30, 1996. Sanders Aff., Exhibit A. Mr. Barnes failed to honor his promise, subsequently made an appointment to call Mr. Sanders to discuss the problem, but never called. Id, 116. Mr. Barnes spent the next few weeks in April and May 1996 not returning or responding to Mr. Sandersâ telephone calls and faxes. Id, 117. When Mr. Sanders finally made contact, Mr. Barnes promised to call Mr. Sanders to discuss the matter, but never did. Id. With the latest discovery deadline imminent, Mr. Sanders faxed a letter to Mr. Barnes imploring him to resolve the discovery problems. Id, Exhibit B. Mr. Barnes did not respond. Id, It 7.
Plaintiffs then requested a scheduling conference with the court to discuss the discovery problems. Id, Exhibit C. On June 6, 1996, the day after that conference, Mr. Barnes finally produced some documents. Id, It 33. On June 7,1996, Mr. Sanders faxed a letter to Mr. Barnes detailing a number of deficiencies in the documents produced, but received no response. Id, U 33 and Exhibit E.
At the deposition of defendant Stephen Walters held on June 10, 1996, plaintiffs'inquired whether Mr. Walters had turned over to Mr. Barnes all documents within the scope of the First Request. Mr. Walters responded that he had never seen the First Request, and was never asked if he had any documents covered by it. Id, H 34; Sanders Supp. Dec., Exhibit G. Similar responses were received from the other defendants during depositions. Sanders Aff., 1134; Sanders Supp. Dec., H4. Mr. Barnes admits that he did not show the First Request to defendants, but states that he âdiscussed its parameters with themâ and learned that âthey retained no documents that were not duplicated in the Racing Commissionâs own files.â Barnes Supp. Aff., 117. This explanation by Mr. Barnes conflicts with Mr. Sandersâ recollection. Mr. Sanders recalls being told that Mr. Barnes did not show the First Request to defendants because he did not believe that it encompassed documents in the possession of individual defendants. Sanders Supp. Dec., 114. However, Mr. Sanders had specifically requested such documents in his June 7, 1996 letter. Sanders Aff., Exhibit E, p. 2.
Mr. Sanders again told Mr. Barnes of his concerns regarding deficiencies in the production of documents both during the depositions and in a second letter faxed to Mr. Barnes on June 13, 1996, but again received no response. Id, K 35. On July 2, 1996, Mr. Sanders sent a follow-up letter to Mr. Barnes detailing the outstanding requests. Id, H 36.
Mr. Sanders repeatedly told Mr. Barnes of the need for a signed, written response certifying that the requested documents either have all been produced, do not exist, or are being withheld on grounds of privilege. Sanders Supp. Dec., H 2. Plaintiffs claim that this signed statement is needed for evidentiary purposes and, if plaintiffs later determine that documents were improperly withheld, for imposition of sanctions under FRCP 26(g). Although promising to provide this statement, Mr. Barnes has never done so. Id.
Mr. Sanders faxed yet another letter to Mr. Barnes on July 15, 1996, threatening to file a motion to compel the production of documents unless he received a response by the end of the day. Id, Exhibit A. Because
C. Defendants â Excuses
1. Belated Compliance
Defendants argue that sanctions are inappropriate because they belatedly appeared for depositions and produced most (though not all) of the requested documents, blaming plaintiffsâ motion for sanctions on âobvious impatience.â Response to Motions for Sanctions (âResponseâ), p. 3. This excuse has repeatedly been rejected by the Ninth Circuit. âBelated compliance with discovery orders does not preclude the imposition of sanctions.â North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986). See also Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9th Cir.1993) (submitting to a deposition does not purge prior failure to appeal' for deposition); G-K Properties v. Redevelopment Agency of City of San Jose, 577 F.2d 645, 647-48 (9th Cir. 1978) (âlast minute tenderâ of discovery does not cure effects of discovery misconduct.)
2. Substantial Justification
(a) Document Production
Mr. Barnes does not dispute any of the material facts regarding his failure to timely produce documents.- Instead, he states only that he provided all documents âwith one minor exceptionâ for âcopies of all documents generated' around March of 1993 now in the possession of any of the defendants, even if they are duplicates of documents plaintiffs have already seen in the Racing Commission files.â Response, p. 2, n. 2.
This explanation is deficient for several reasons. First, it entirely fails to address the fact that he has not yet served a written response to the First Request, despite the pendency of these sanction motions. Second, even if a written response to the First Request is unnecessary, given that most of the responsive documents have now been produced, defendantsâ explanation does not substantially justify the belated production of responsive documents.
Mr. Barnes may have initially believed that producing the Oregon Racing Commissionâs files would provide plaintiffs with all of the documents requested in the First Request. However, this does not explain why he did not produce any documents until after plaintiffs wer*e forced to seek the assistance of the court at the June 6, 1996 scheduling conference. And even if Mr. Barnes honestly misunderstood the scope of the First Request, Mr. Sanders cleared up any confusion by stating in his letter of June 7, 1996 that he requested not merely the sanitized official files from the Oregon Racing Commission office, but also all documents from the defendantsâ individual files which may contain handwritten notes of meetings or telephone conversations. That same letter also noted other deficiencies in the document production. Mr. Barnes did not respond either to Mr. Sandersâ June 7, 1996 letter or to Mr. Sandersâ follow-up letters of June 13 and July 2, 1996. Likely because Mr. Sanders threatened to file a motion to compel, Mr. Barnes did respond to Mr. Sandersâ July 15, 1996 letter by promising to promptly call Mr. Sanders with updated information about the status of outstanding discovery matters, but then failed to do so. Mr. Barnes also failed to respond to Mr. Sandersâ August 5, 1996 letter.
Plaintiffs understandably needed all responsive documents produced before taking defendantsâ depositions. Now that the depositions have been completed without production of all responsive documents, plaintiffs are deprived of the opportunity to question the witnesses about such documents (if they exist) or the diligence of their search for such documents (if they are not produced). In fact, plaintiffs suspect that some documents
As discussed below, Mr. Barnesâ blames his busy schedule during this time period for the difficulty in scheduling depositions. However, he does not attempt to excuse his belated production of documents on lack of time. Barnes Supp. Aff., H 3. Giving Mr. Barnes the benefit of the doubt, it is likely that his'busy schedule also may have interfered with his ability to timely produce documents. However, Mr. Barnesâ July 16, 1996 letter indicates that he had the assistance of a paralegal to obtain and produce responsive documents. No excuse is provided for the paralegalâs inability to assist Mr. Baines to timely respond to the First Request. More importantly, in the numerous conferences with this court, Mr. Barnes never mentioned that he was unable to produce responsive documents because he was overly burdened with other work.
In sum, defendants have presented no substantial justification for their failure, after four months and repeated requests, to produce all requested documents or seive a written response to the First Request.
(b) Depositions
Mr. Barnes nowr claims that Mr. Sanders should have understood that he would not be appearing for depositions on June 24, 1996, even though he did not clearly say so. This explanation directly contradicts Mr. Sandersâ recollection that just before terminating their last telephone conversation on June 21, 1996, Mr. Barnes said he would seek a protective order. That statement of Mi1. Barnesâ intention, which Mr. Barnes has not specifically denied, would lead Mr. Sanders to reasonably conclude that Mr. Barnes would not simply ignore the deposition notices. Mr. Barnesâ intention to seek a protective order is confirmed by his explanation on June 24, 1996, to Mr. Sanders that he had been too busy to seek one. Again, Mr. Baines has not denied that he made that statement to Mr. Sanders.
In any event, even assuming that Mr. Sanders should have concluded that Mr. Barnes would not appear on June 24, 1996, due to his scheduling difficulties, sanctions are still in order. The Ninth Circuit has affirmed sanctions against defense counsel for failing to appear at a deposition absent a valid protective order, even though he had informed plaintiff that he did not plan to attend. Telluride, 55 F.3d at 466-67. âIf [defense counsel] believed the notice was improper, he could have sought relief from the court.â Id at 467, n. 3. Similarly here, Mr. Barnes knew that the deposition notice was valid and had been instructed by the court to complete depositions by June 28, 1996, yet failed to seek a protective order.
Mr. Barnes argues that his failure to attend was justified because notice of only two to three business days for depositions is âinherently unreasonable.â Response, p. 2. However, if Mr. Barnes took issue with the timing, his remedy was to move for a protective order. He cannot simply ignore the notice, even if it was unreasonable. Moreover, the admittedly short notice was necessitated by Mr. Barnesâ own dilatory conduct. With only one week remaining to complete discovery, plaintiffs had no choice but to force Mr. Barnesâ hand: Whether or not Mr. Barnes was unable to contact his clients shortly prior to June 24, 1996, which plaintiffs dispute, the fact remains that he should have contacted them long before June in an attempt to schedule their depositions, rather than waiting until the very last week of discovery. The undisputed facts reveal that Mr. Barnes has made his clients available for deposition only with constant prodding by plaintiffs and the court.
In sum, Mr. Barnesâs failure to appear for the noticed depositions was not substantially justified in the absence of a protective order or, at the very least, a clear and unambiguous agreement by Mr. Sanders to postpone the depositions. As a result, FRCP 37(d) requires, the court to order defendants, Mr. Barnes, or both, to pay the reasonable expenses, including attorneyâs fees, caused by that failure.
II. FRCP 37(a)(4)(A)
A. Standards
In contrast to FRCP 37(d), FRCP 37(a)(4)(A) targets motions to compel discov
B. Violations
As set forth above, plaintiffs were obliged to file three motions to compel as a result of Mr. Barnesâ conduct:
(1) March 18, 1996 motion to compel defendantsâ depositions, which the court granted on March 29, 1996;
(2) June 10, 1996 motion to compel a schedule for defendantsâ depositions that were supposed to commence that same day. Mr. Barnes furnished that schedule, such as it was, only after the motion was filed; and
(3) June 24, 1996 motion to compel defendantsâ depositions, which the court granted on June 25, 1996 with instructions to Mr. Barnes to give daily reports to opposing counsel of his efforts to locate and schedule his clients for depositions.
Also, on July 15, 1996, plaintiffs prepared yet another motion to compel production of documents, sent a draft to Mr. Barnes, but deferred filing based on Mr. Barnesâ as yet unfulfilled promise to provide the requested documents.
The record reveals that plaintiffs have satisfied the prerequisite to an award of sanctions under FRCP 37(a)(4) because they first attempted to resolve the issues without judicial intervention.
C. DefendantsâExcuses
Defendants offer virtually no excuse for forcing plaintiffs to file the motions to compel, other than Mr. Barnesâ busy schedule. He proffers several reasons that made it difficult for him to schedule depositions in this case. First, in the Torts and Employment Group of the Trial Division, the area of the Department of Justice in which he works, two of the eight attorneys left during the first part of 1996. Barnesâ Supp. Aff., H 3. Because Mr. Barnes handles between 40 and 50 active litigation files and must travel extensively throughout the Pacific Northwest, he âwas required to spend a minimum of twenty-nine days in deposition and attend hearings or trial on 15 different days.â Id. This court does not doubt that Mr. Barnes has been very busy and perhaps more so than usual during the first five months of 1996. Nevertheless, the fact remains that he never advised the court that his schedule prevented him from complying with the courtâs orders. The problem is not when depositions were set, but that Mr. Barnes repeatedly ignored inquiries from opposing counsel, which required plaintiffs to file motions to compel. Mr. Barnes may have been able to avoid these motions had he (or someone else in his office) simply returned Mr. Sandersâ telephone calls or responded to Mr. Sandersâ letters.
Second, Mr. Barnes notes that scheduling depositions of defendants, who are retired or are employed in the private sector, was more difficult than scheduling depositions of state employees. Id. 114. He communicated with defendants âas frequently as our mutual schedules allowed,â but encountered particular difficulty communicating with two defendants who are âbusy businessmen in Portland,â a third defendant (Ms. McAdam) who resides on the Oregon coast and travels frequently, a fourth defendant (presumably Dr. Rankins) who is âa busy veterinarian in Albany,â and another witness (Ms. Fine) who is a public defender in Lane County. Id. 115. He even enlisted the assistance of the executive director of the Racing Commission and an investigator. Id.
Mr. Barnes may well have encountered difficulty contacting his clients and other witnesses, but he notably neglects to state when he tried unsuccessfully to contact them. Given the problems encountered by Mr. Sanders and this court to complete discovery, whatever diligent efforts Mr. Barnes made to contact his clients to schedule depositions could
Mr. Sanders also disputes the alleged unavailability of the witnesses. He understood from Mr. Barnes on June 21, 1996, that most witnesses w'ere available on short notice. Sanders Affd., H 23; Sanders Supp. Affd., H 6. He also notes that Mr. Barham is a full-time state employee in Portland; Mr. Sundermier is an attorney with the Department of Justice; Dr. Rankins is retired; and Ms. McAdam is retired, but testified that she was in town and available for depositions for most of the first six months of 1996. Sander Supp. Affd., 116; Sanders Supp. Dec., Exhibit H (Deposition of Joanne McAdam, p. 8). The only witness with a scheduling problem was Ms. Fine, a public defender in Lane County and a minor witness whom plaintiffs agreed to depose by telephone on a Saturday morning to accommodate her schedule. Sanders Supp. Affd., 116. Furthermore, Mr. Barnes made no effort to locate Ms. McAdam until July 1996. Id. 117.
Mr. Sanders further concludes that Mr. Barnes had not spoken to his clients in some time concerning deposition dates or else he would have known that several of them planned to be out of town for an extended pei'iod of time or were otheiwise unavailable for depositions on June 27 and 28, 1996. Sanders Affd., K 40. He also believes that Mr. Barnes could have easily contacted most of his clients during the monthly Oregon Racing Commission meetings. Id. H 44. It is abundantly clear to this court that plaintiffsâ only effective method for prompting Mr! Barnes into action has been to file motions to compel and for sanctions.
Defendants also suggest that the endless delays should be excused because this is a complicated case, as evidenced by plaintiffsâ request for additional time to respond to the motion for summary judgment. However complex the legal claims may be in this case, discovery is not. Plaintiffs only sought eight depositions, all of which are Mr. Barnesâ own clients, current or former state officials, and residents of Oregon. None of the depositions have required more than half a day. This current situation was caused simply by Mr. Barnesâ dilatoriness. Mr. Barnes may believe that plaintiffsâ claims lack merit and are a waste of both his and the courtâs time, but his belief, even if justified, is no excuse for avoiding his professional responsibilities through a campaign of passive resistance.
This court finds no substantial justification or other circumstances for avoiding the mandatory award under FRCP 37(a)(4)(A) to plaintiffs of their reasonable expenses, including attorney fees, for filing the three motions to compel.
III. FRCP 37(b)
A. Standards
Whereas FRCP 37(d) addresses the failure to attend a deposition and FRCP 37(a)(4)(A) addresses motions to compel, FRCP 37(b) targets a partyâs failure to obey an order to provide or permit discovery. It allows the court to make such orders âas are just,â and in lieu or in addition, requires the offending party, its attorney or both âto pay the reasonable expenses, including attorneyâs fees, caused by the failureâ unless it âwas substantially justifiedâ or âother circumstances make an award of expenses unjust.â Id.
A prerequisite for imposing sanctions under FRCP 37(b) is the existence of an âorder.â However, the term âorderâ is broadly construed for purposes of imposing sanctions. Unigard Sec. Ins. Co. v. Lakewood Engâg & Mfg. Corp., 982 F.2d 363, 368 (9th Cir.1992). The âorderâ need not be in writing. Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir), cert denied, 419 U.S. 832, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974) (court had orally requested that certain documents be produced). It is a violation of an âorderâ for purposes of FRCP 37(b) when a party fails to deliver documents it had promised by a certain date. See Metropolitan Life Ins. Co. v. Cammon, 1989 WL 153558 (N.D.Ill.1989), aff'd 929 F.2d 1220 (7th Cir.1991).
It is not even necessary for the opposing party to move for this order, only that it be issued and disobeyed. Properties Intâl Ltd.
B. Violations
The record reveals that defendants disobeyed four orders that fall within the scope of FRCP 37(b):
(1) January 24, 1996 order directing the parties to complete depositions by March 20, 1996. On January 29, 1996, plaintiffs furnished Mr. Barnes with a list of witnesses under his control whom they wished to depose. Despite repeated requests, Mr. Barnes did not propose any dates or make any witnesses available, nor did he explain his failure to do so;
(2) March 29, 1996 order directing Mr. Barnes to cooperate in scheduling depositions, and requiring completion of discovery by May 15,1996. Despite repeated requests, Mr. Barnes neither made any witnesses available nor provided any documents by that deadline;
(3) June 5, 1996 order requiring discovery to be completed by June 28, 1996, with a warning that sanctions would be imposed for failure to comply. Mr. Bames had not provided all of the requested documents by as late as August 18, 1996, and may still not have produced them. This court also ordered Mr. Barnes to schedule five of his clients for depositions on June 10-12, 1996, and to provide plaintiffs with the schedule; he failed to do so in a timely manner. When he belatedly provided the schedule, it was only for two of the eight witnesses with no effort to schedule the remainder for other dates. Just five days before the discovery deadline, Mr. Barnes had no witnesses confirmed.
(4) July 2, 1996 order setting a briefing schedule for the sanction motions and dispositive motions. Mr. Barnes filed his response to the sanctions motion two weeks late with no request for an extension of time. Mr. Barnes also failed to file dispositive motions by July 8, 1996. After plaintiffs asserted that defendants had waived their right to file any motions, defendants belatedly requested and received an extension of time until July 15, 1996. Defendants then ignored this new deadline as well and did not file the motions until July 19,1996.
C. DefendantsâExcuses
Defendants offer the same excuses for repeated violations of this courtâs orders as for their other violations of FRCP 37. As discussed above, this court finds that defendantsâ failure to comply with the courtâs orders was not substantially justified. Therefore, the court finds that sanctions are appropriate.
III. FRCP 26(g)
A. Standards
FRCP 26(g) mandates the imposition of sanctions for conducting discovery irresponsibly. It adopts the certification requirements of FRCP 11 and applies them to â[e]very discovery request, response or objection.â FRCP 26(g)(2). Like FRCP 11, its requirements are strict; the standard of care is objective; and the sanctions are mandatory. Due to the similarity, courts have applied the case law applicable to the 1983 version of FRCP 11 to the sanctions lan
B. Violation
Although noting that Mr. Barnes has repeatedly failed to comply with the discovery rules, plaintiffs concede that he has managed to avoid sanctions under FRCP 26(g) by filing no discovery responses at all. The imposition of sanctions under FRCP 26(g) rests upon the signing of a discovery document that violates the rule. If the wrongdoing does not involve a violative signature on a discovery request, response or objection, then FRCP 26(g) does not apply. Until defendants file an improper discovery response or objection, plaintiffs must seek sanctions under other rules.
IV. Inherent Power of the Court
A. Standards
To fill in the gaps between the other rules, courts are invested with inherent powers to sanction a party or counsel who âwilfully abuse[s] the judicial process.â Oregon RSA No. 6 v. Castle Rock Cellular of Or., Ltd. Partnership, 76 F.3d 1003, 1007 (9th Cir.1996), quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980). These sanctions are designed not only to provide a substantive remedy to an aggrieved party, but also to âvindicate judicial authority.â Mark Indus., Ltd. v. Sea Captainâs Choice, Inc., 50 F.3d 730, 733 (9th Cir.1995). Pursuant to this inherent authority, this district court has adopted Local Rule 110-4 which permits the court to impose sanctions âif it finds that counsel has been unreasonable in not accommodating the legitimate requests of opposing counsel.â
However, â[s]uch sanctions require a court to make a finding of subjective bad faith,â and due process concerns âmay require fair notice and an opportunity for a hearing on the record.â Oregon RSA No. 6, 76 F.3d at 1007.
B. Violations
Plaintiffs allege the same lengthy list of violations under FRCP 37 as the basis for imposing sanctions under the inherent powers of the court. In addition, plaintiffs note that defendants have committed a number of acts of misconduct not covered by FRCP 37 or 26(g) which have caused them considerable expense. These include:
(1) Mr. Barnes never bothering to review the requests for production with his clients to determine if they had any responsive documents;
(2) Defendantsâ continued failure to file a signed response to the requests for production certifying that all responsive documents have been produced;
(3) The hours spent by plaintiffs prodding Mr. Barnes to respond.
However, this alternative basis for imposing sanctions is neither necessary nor appropriate for two reasons. First, most of the objectionable conduct is covered by FRCP 37. And second, although defendants have been given âfan- noticeâ that plaintiffs are seeking such sanctions, neither party has requested a hearing on the record.
V. Amount of Sanctions
A. PlaintiffsâRequest
Plaintiffs seek monetary sanctions in the sum of $10,000.00, without specifying whether they seek an order against defendants, Mr. Barnes, or both. In support of this request, plaintiffsâ attorney has submitted his time sheets and affidavits setting forth the
B. Sovereign Immunity
Although the issue was not raised by any party, this court notes that defendants are former and current public officials represented by a publicly employed lawyer. Imposing a judgment that obligates the public treasury without the sovereignâs consent is generally barred by sovereign immunity. Absent an explicit waiver of sovereign immunity, courts may not assess monetary awards, including attorneysâ fees, against the federal government. United States v. Nordic Village, 503 U.S. 30, 37, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992). It is less clear whether sovereign immunity also may save the federal government from court imposed monetary sanctions. Compare United States v. Horn, 29 F.3d 754 (1st Cir.1994) (holding that sovereign immunity bars monetary sanctions against the United States for prosecutorial misconduct) and United States v. Woodley, Additional Information