CARTER et al v. BUTTS COUNTY GEORGIA et al
Filing
97
ORDER granting in part and denying in part 25 Motion for Sanctions. Defendant Filbeck is ORDERED to reimburse Plaintiffs for reasonable expenses and fees incurred in connection with this Motion. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 03/31/2016 (mdm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAVID CARTER, CLAYTON
GRAHAM, JR., and MITCHELL
WEBSTER,
Plaintiffs,
v.
BUTTS COUNTY, GEORGIA,
SHERIFF GENE POPE, Individually
and in his Official Capacity,
TIMOTHY FILBECK, Individually
and in his Official Capacity,
Defendants.
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CASE NO.: 5:12-CV-209 (LJA)
ORDER
Before the Court is Plaintiffs’ Motion for Sanctions. (Doc. 25.) For the following
reasons, Plaintiffs’ Motion is GRANTED in part and DENIED in part.
BACKGROUND
The facts of this case are fully set forth in the Court’s June 2, 2015 Order (Doc. 75)
and need not be fully recounted herein. In short, this action concerns the alleged unlawful
arrest of Plaintiffs as they were cleaning out the foreclosed home of Defendant Filbeck, a
lieutenant in the Butts County Sheriff’s Department, on February 22, 2011. At that time,
Plaintiffs were employed by MD Maintenance (“MDM”), who had been hired by Ocwen
Loan Servicing LLC (“Ocwen”). Ocwen foreclosed on Defendant Filbeck’s property (the
“Property”) on January 4, 2011. Although Defendant Filbeck vacated the Property in
November of 2010, he left several of his possessions at the Property.
Following the foreclosure sale, MDM conducted due diligence on the Property and
concluded that it had been abandoned. On January 18, 2011, MDM began cleaning out the
Property and preparing it for resale. MDM allegedly affixed a notice to the front door (the
“Notice”) stating that the Property had been foreclosed upon by Ocwen and that any
questions regarding the Property should be directed to MDM.
On January 30, 2011, Defendant Filbeck visited the Property and discovered that
some of the possessions he left there were missing. Defendant Filbeck asserts that he did not
see the Notice affixed to the front door, and thus did not contact anyone at Ocwen or
MDM regarding their entry onto the Property or the removal of any of his possessions.
Because of his purported belief that the Property had been burglarized, Defendant Filbeck
boarded up the windows, nailed the doors shut, and posted four keep-out signs on the
Property. That same day, he also filed a police report using the name of Sergeant Kenneth
Mundy (the “January 30 Report”), and submitted an insurance claim to Liberty Mutual
Insurance for his missing possessions. Sergeant Mundy testified at his deposition that he
discovered the January 30 Report after Plaintiffs’ arrest, and demanded that his name be
removed from the Report, as he did not prepare it, authorize it, or know anything about it
prior to discovering it sometime after Plaintiffs were arrested.
The following day, on or about January 31, 2011, Plaintiff Graham and another
MDM employee, Greg Carter, returned to the Property and discovered that the windows
had been boarded, the doors nailed shut, and the keep-out signs. Upon notifying MDM of
their discovery, MDM’s owner contacted the Butts County Sheriff’s Department, which
subsequently dispatched Officer Thomas Middleton to the scene. Greg Carter explained that
MDM had authority to clean out the Property, and showed Officer Middleton paperwork
from Ocwen. Officer Middleton told Carter that he could not authorize MDM to enter the
Property. However, because he did not believe a crime was being committed, he did not
make an arrest. Officer Middleton subsequently memorialized the encounter in his Daily
Activity Report (the “DAR”). Defendants, however, have been unable to locate and produce
the DAR.
On the morning of February 22, 2011, Plaintiffs returned to the Property to finish
cleaning it out. As they were removing household items and trash, Lieutenant Matthew
Vaughn arrived on the scene. Plaintiff Carter explained MDM’s purpose at the Property and
presented Lieutenant Vaughn and the other deputies who had subsequently arrived with
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documents from Tina Carter demonstrating MDM’s authority to be at the Property.
Defendant Filbeck arrived shortly thereafter and took control of the investigation. Although
Plaintiffs and MDM’s owner, via telephone, attempted to explain why they were at the
Property and to demonstrate their authority for being there, Defendant Filbeck ordered
Plaintiffs’ arrest for burglary. At that time, the Butts County Sheriff’s Department allegedly
confiscated two cameras, silverware, and twenty dollars in cash. Plaintiffs allege that they
took photos of the Property as proof that the Property appeared abandoned. They also
allege that they took photos of the Notice posted on the Property.
On June 7, 2012, Plaintiffs commenced this action against Defendants, alleging
federal constitutional tort claims, pursuant to 42 U.S.C. § 1983, for arrest without probable
cause as well as state law claims for negligent hiring and retention and conversion. On March
10, 2014, Defendants moved for summary judgment (Doc. 46) and Plaintiffs
contemporaneously moved for sanctions against Defendant Filbeck and his counsel, alleging
spoliation of evidence and discovery violations. (Doc. 25.) On June 2, 2015, the Court
granted in part and denied in part Defendants’ Motion for Summary Judgment. (Doc. 75.)
Defendants subsequently appealed the Court’s Order and moved to stay any further
proceedings on Plaintiffs’ Motion for Sanctions. (Docs. 77, 81, 82.) The Court denied
Defendants’ Motion to Stay, finding that the issues raised in Plaintiffs’ Motion for Sanctions
were collateral to the merits of Defendants’ appeal. (Doc. 83.) Thereafter, the Court held a
hearing on Plaintiffs’ Motion for Sanctions (the “Sanctions Hearing”) and the Parties
submitted supplemental briefing. (Docs. 88-96.)
In the instant Motion, Plaintiffs seek sanctions against Defendant Filbeck and his
counsel, Kevin Morris (“Attorney Morris”), alleging (1) that Attorney Morris concealed the
whereabouts of Sergeant Mundy; (2) that Attorney Morris failed to disclose a known conflict
relating to the representation of Sergeant Mundy; (3) that Attorney Morris and Defendant
Filbeck failed to disclose the identity of Officer Middleton; (4) that Defendant Filbeck
materially altered the January 30, 2011 Report by replacing Officer Mundy’s name with his
own and failed to disclose the alteration or the existence of the original Report; and (5) that
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Defendant Filbeck destroyed Officer’s Middleton’s DAR and Plaintiffs’ camera such that he
should be liable for spoliation.
FINDINGS OF FACT
Based on the testimony presented during the Sanctions Hearing (Doc. 94) and the
record in this case, the Court makes the following findings of fact:
I.
The January 30 Police Report
Following his discovery that some of his property was missing on January 30, 2011,
Defendant Filbeck filed a police report listing Sergeant Mundy as the reporting officer.
Sometime after Plaintiffs’ arrest, Sergeant Mundy discovered the Report and demanded that
his name be removed from it, as he did not prepare it, authorize it, or know anything about
its existence. (Doc. 43 at 34:19-36:8.)
Following Sergeant Mundy’s complaint, and after being made aware of the possibility
of a lawsuit, Defendant Filbeck altered the January 30, 2011 Report by listing himself as the
reporting officer and removing any reference to himself in the Report’s narrative. He did so
on May 9, 2011, five days after Plaintiffs submitted a request to the Butts County Sheriff’s
Department to produce certain documents under the Open Records Act, O.C.G.A. § 50-1870 et seq. (the “Open Records Request”) (Doc. 27 at 44-48). Defendant Filbeck testified
during the Sanctions Hearing that, at the time he altered the Report, he knew that by doing
so the original Report would be deleted from the system. (Doc. 94 at 34:2-8.)
When questioned about submitting the Report to Liberty Mutual to recover for his
missing property, Defendant Filbeck was evasive and not entirely forthcoming. For instance,
when asked during his deposition whether he submitted the altered Report to Liberty
Mutual, Defendant Filbeck responded that he “used the case number with the information
contained in it.” (Doc. 37 at 8:3-4.) Although he was not specifically asked, Defendant
Filbeck never stated that a previous version of the Report had been filed. Similarly, during
the Sanctions Hearing, it took multiple questions before Defendant Filbeck finally admitted
that the unaltered Report was the one submitted to Liberty Mutual. (Doc. 94 at 16:10-17:9.)
Even then, Defendant Filbeck attempted to diminish the significance of his actions by
stating that the material information in Report remained the same. Ultimately, Plaintiffs were
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able to obtain a copy of the original Report through a subpoena to Liberty Mutual. (Doc.
42.)
II.
Destruction of Camera and Photos
When Plaintiffs were arrested, the Butts County Sheriff’s Department impounded
Plaintiffs’ truck and trailer. A camera containing photos, including images of the condition
of the Property at each visit as well as photos of the Notice affixed to the Property on
January 18, 2011 and January 29, 2011, was inside the truck.
According to Defendant Filbeck, while Plaintiffs were being held by the Sherriff’s
Department, he went to the impound lot to retrieve his possessions from Plaintiffs’ truck
and trailer. (Doc. 37 at 14:11-15:6, 73:14-21, 74:17-24, 76:2-16, 84:6-86:10, 88:3-12; Doc. 94
at 55:12-56:57:11.) Defendant Filbeck admitted that he entered the impound lot without any
lawful authority and broke into the truck. (Id.) Defendant Filbeck further admitted that he
accessed Plaintiffs’ camera and downloaded some of the photos onto his computer. (Id.)
Defendant Filbeck did so without the permission or knowledge of the Butts County Sheriff’s
Department and without a warrant. (Id.) Although Defendant Filbeck maintains that he left
the camera inside the truck after downloading the photos (Doc. 37 at 74:2-4; Doc. 94 at
44:9-10, 52:4-6), the camera has never been returned to the Plaintiffs and the Butts County
Sheriff’s Department has not been able to locate it.
After downloading the photos, Defendant Filbeck never informed anyone at the
Butts County Sheriff’s Department about the camera or the photos. Plaintiffs first learned of
Defendant Filbeck’s actions when, during his deposition, Attorney Morris informed
Plaintiffs’ counsel that Defendant Filbeck had given him some photos downloaded from the
missing camera.
III.
Destruction of DAR
After meeting with Plaintiff Graham and other MDM personnel on January 30, 2011,
Officer Middleton memorialized the encounter in his DAR. (Doc. 94 at 68:7-12.) He then
placed the DAR in his supervisor’s box. (Id. at 71:1-72:20, 95:16-96:10.) At that time,
Defendant Filbeck was not Officer Middleton’s supervisor. (Id.) There is no evidence that
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Defendant Filbeck had access to Officer Middleton’s DAR or the box where it was filed.
Nor is there any evidence that Defendant Filbeck ever came into possession of the DAR.
The Butts County Sheriff’s Department attempted to locate the DAR, but was unable
to find it. Although it is not entirely clear what happened to the DAR, there is insufficient
evidence to conclude that Lieutenant Filbeck ever came into possession of, or destroyed,
the DAR.
IV.
Concealment of Officer Middleton’s Identity
Following their arrest, Plaintiffs made numerous attempts to discover information
regarding the January 31, 2011 encounter with Officer Middleton, including Officer
Middleton’s identity and any reports relating to the incident. Plaintiffs contend that both
Defendant Filbeck and Attorney Morris attempted to conceal the identity of Officer
Middleton throughout this process.
On May 4, 2011, Plaintiffs’ counsel sent the Open Records Request, via certified mail,
to Sherriff Gene Pope and the Butts County Sheriff’s Department. (Doc. 27 at 44-48.)
Paragraph 17 of the Request specifically sought the production of “[a]ll reports,
supplemental reports or other documents and tangible things relating to case number
20012,” which was the case number assigned to Officer Middleton’s 911 response call to the
Property on January 31, 2011. It is not clear what, if anything was produced in response to
Paragraph 17 of the Open Records Request.
Following the commencement of this action, in January of 2013, Plaintiff Carter
served interrogatories and requests for production on Defendants Butts County, Sheriff
Gene Pope, and Defendant Filbeck. (See Docs. 38-41.) Therein, Plaintiff Carter requested
that Defendant Filbeck:
Please state the names, last known addresses, and last known telephone
numbers of all persons whom you believe to have any knowledge or
information about any facts that support any of the allegations of the
complaint or support any of the denials or defenses contained in your answer.
On January 17, 2013, Defendants served Plaintiffs with their responses. In response to the
above interrogatory, Defendant Filbeck did not disclose Officer Middleton’s identity.
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In addition to Plaintiff Carter’s interrogatories and requests, Plaintiff Webster served
Defendant Butts County with interrogatories and requests for production (“Webster’s
Request”). Webster’s Request exclusively concerned the January 31, 2011 encounter with
Officer Middleton, seeking, among other things, “the names and positions of all employees
of Butts County who investigated or arrived at [the Property] . . . on or about January 31,
2011.” (Doc. 41 at 4.) Like the Open Records Request, Webster’s Request also specifically
cited the 20012 case number. (See id.)
On February 19, 2011, Defendant Butts County responded to Webster’s Request,
lodging wholesale objections and asserting that it “exercises no control over the law
enforcement functions of the Butts County Sheriff” and that it was “not aware that any
individuals it employs visited or investigated [the Property] on January 31, 2011.” (Doc. 27 at
36-41.) Butts County further stated that it was not “the custodian of documents prepared or
retained by the Butts County Sheriff.” (Id.) Also on February 19, 2011, Defendants
supplemented their prior responses to Plaintiff Carter’s discovery requests, and produced a
copy of the Butts County Computer Aided Dispatch report (the “CAD Report”) of Officer
Middleton’s 911 dispatch call to the Property on January 31, 2011. (Doc. 92 at ¶ 8.)
Although the CAD Report listed the unit number of the officer who responded to the call
(see Doc. 91-5), it did not identify Officer Middleton.
After receiving the CAD Report, Plaintiffs made no further inquiry regarding the
Report until Defendant Filbeck’ deposition on June 7, 2013. During the deposition,
Plaintiffs’ counsel introduced the CAD Report and questioned Defendant Filbeck on
whether he was aware of a deputy responding to the Property on January 31, 2011. (Doc. 37
at 12:21-25.) In response, Defendant Filbeck unequivocally answered “no.” (Id. At 13:3.)
Plaintiffs’ counsel asked no follow-up questions regarding the information in the CAD
Report.
Following Defendant Filbeck’s deposition, on June 11, 2013, Plaintiffs’ counsel
emailed Attorney Morris and demanded that Defendants identify the deputy who responded
to the call on January 31, 2011. (Doc. 92 at ¶ 13.) The next day, on June 12, 2013, Plaintiffs’
counsel deposed Sheriff Pope. When shown the CAD Report, Sheriff Pope easily identified
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Officer Middleton as the officer who responded to the call on January 31, 2011. (Doc. 35 at
51:9-23.) In fact, Sheriff Pope identified Officer Middleton without being specifically asked
by Plaintiffs’ counsel to do so. (Id.)
Plaintiffs’ counsel deposed Officer Middleton on August 23, 2013. During his
deposition, Officer Middleton testified that he spoke to Defendant Filbeck, on or around the
day of Plaintiffs’ arrest, regarding his January 31, 2011 encounter with MDM personnel. (See
Doc. 29 at 23:19-30:12.) During the conversation, Officer Middleton told Defendant Filbeck
that the people he met with showed him paperwork that purportedly authorized them to
clean out the Property. (Id. at 26:15-24.) Defendant Filbeck asked Officer Middleton “if
[Plaintiffs] were the guys that was [sic] out there.” (Id. at 24:1-5.) Officer Middleton could
not recall their names, but told Defendant Filbeck to check the dispatch log or his DAR. (Id.
at 24:2-25.)
During the Sanctions Hearing, Plaintiffs’ counsel and the Court repeatedly questioned
Defendant Filbeck on whether he had spoken to Officer Middleton about Plaintiffs’ arrest
and Officer Middleton’s January 31, 2011 call to the Property. (Doc. 94 at 36:7-37:20, 48:1018, 60:12-61:6.) Consistent with his deposition testimony, Defendant Filbeck reiterated his
denial of having any knowledge of a deputy responding to a call at the Property on January
31, 2011. (Id.) Defendant Filbeck further denied every speaking to Officer Middleton about
Plaintiffs’ arrest or the January 31, 2011 encounter. (Id.) Although Defendant Filbeck
admitted that he would have expected someone he knew and worked with to tell him about
responding to a potential burglary at his home, Defendant Filbeck insisted that he never
spoke to Officer Middleton. (Id. at 60:12-61:6.)
Contrary to Defendant Filbeck’s testimony, Officer Middleton repeatedly testified
during the Sanctions Hearing that he spoke to Defendant Filbeck around the time of
Plaintiffs’ arrest. According to Officer Middleton, Defendant Filbeck called him and asked
“if the people [Defendant Filbeck] had arrested were the same people that were on the call.”
(Doc. 94 at 81:2-13.)
After questioning Defendant Filbeck and Officer Middleton, Plaintiffs’ counsel called
Attorney Morris to testify about, among other things, his efforts to identify Officer
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Middleton. (Id. at 138:2-139:20, 151:19-159:3.) Attorney Morris equivocated on many of his
answers, and could not provide the Court with any detail regarding his efforts to identify
Officer Middleton. (Id.) As such, the Court provided Attorney Morris with the opportunity
to supplement his responses. On August 10, 2015, Attorney Morris filed an affidavit
outlining the actions he took in attempting to identify Officer Middleton. (See Doc. 92.) The
affidavit makes clear that, after producing the CAD Report, Attorney Morris made no
attempt to identify Officer Middleton. (Id.)
V.
Concealment of Sergeant Mundy’s Whereabouts and a Known Conflict
In addition to moving for sanctions against Attorney Morris for failing to identify
Officer Middleton, Plaintiffs also moved for sanctions against him for allegedly concealing
the location of Officer Mundy and failing to disclose a known conflict in representing him.
Prior to the commencement of this action, Attorney Morris represented Officer
Mundy in an unrelated lawsuit. Around the time this action was commenced, Attorney
Morris contacted Officer Mundy to notify him that summary judgment had granted in that
action. During the conversation, Attorney Morris also informed Officer Mundy that another
case “might come up.” (Doc. 43 at 48:12-15.) Attorney Morris explained what the instant
case was about, and Officer Mundy indicated that he would be testifying in Plaintiffs’ favor.
According to Plaintiffs, Attorney Morris represented that he was counsel for all law
enforcement witnesses in this case, including Officer Mundy. Plaintiffs assert that they relied
on Attorney Morris to produce Officer Mundy for his deposition, but that Attorney Morris
intentionally failed to do so, thereby delaying the litigation. Plaintiffs contend that Attorney
Morris was motivated to conceal the whereabouts of Officer Mundy because he knew that
his testimony would be harmful to Defendants’ case. (Doc. 28 at 5.)
Contrary to Plaintiffs’ assertions, the record is devoid of any evidence that Attorney
Morris affirmatively represented to Plaintiffs’ counsel that he represented all law
enforcement personnel in this matter. Rather, the record reflects that Attorney Morris
offered to assist Plaintiffs, as a professional courtesy, in locating Mundy because he had
represented him in a prior, unrelated lawsuit. Although Attorney Morris offered to assist
Plaintiffs in locating Officer Mundy, there is no evidence that he knew where Officer Mundy
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was located or how to contact him. Instead, the record reflects that Attorney Morris
undertook multiple efforts to find Officer Mundy’s contact information, including
contacting at least six people who worked for the Butts County Sheriff’s Department.
Ultimately, however, Attorney Morris did not obtain or provide Plaintiffs with contact
information for Officer Mundy.
Plaintiffs contend that their case has been hampered because Attorney Morris knew,
based on his conversation with Officer Mundy, that he had a conflict with representing
Mundy in this case. While there likely would have been a conflict had Attorney Morris
represented Officer Mundy in this case, the record indicates that he never provided any legal
advice to Officer Mundy, or represented Officer Mundy in any capacity during this litigation.
Rather, Officer Mundy was provided separate legal counsel for his deposition.
DISCUSSION
I.
Sanctions against Defendant Filbeck
A.
Spoliation of Evidence
Plaintiffs contend that Defendant Filbeck destroyed the following evidence: (1) the
original January 30, 2011 Report; (2) the camera and photographs documenting MDM’s
actions at the Property, including a photo showing the Notice affixed to the Property; and
(3) Officer Middleton’s DAR memorializing his January 31, 2011 meeting with MDM
personnel at the Property.
Spoliation refers to the “destruction or significant alteration of evidence, or the
failure to preserve property for another’s use in pending or reasonably foreseeable
litigation.” Graff v. Baja Marine Corp., 310 Fed.Appx. 298, 301 (11th Cir. 2009). “A court’s
power to impose sanctions for spoliation flows from its inherent power to manage its affairs
and achieve an orderly and expeditious disposition of cases.” Woodard v. Wal-Mart Stores E.,
LP, 801 F. Supp. 2d 1363, 1371 (M.D. Ga. 2011) (citing Flury v. Daimler Chrysler Corp., 427
F.3d 939, 944 (11th Cir. 2005)). “Sanctions function to prevent unfair prejudice to litigants
and to ensure the integrity of the discovery process.” Id. The Court has broad discretion in
determining whether to award spoliation sanctions. Flury, 427 F.3d at 945.
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Although the Eleventh Circuit has not prescribed “specific guidelines” for imposing
spoliation sanctions, the court in Flury set forth the following factors for courts to consider:
(1) whether the defendant was prejudiced as a result of the destruction of evidence; (2)
whether the prejudice could be cured; (3) the practical importance of the evidence; (4)
whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert
testimony about the evidence is not excluded.1 Id. Appropriate sanctions for spoliation may
include: “(1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction
on spoliation of evidence which raises a presumption against the spoliator.” Id. However, an
adverse inference should not be drawn unless the circumstances surrounding the evidence’s
absence indicate bad faith. See Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir.1997) (finding
that “an adverse inference is drawn from a party’s failure to preserve evidence only when the
absence of that evidence is predicated on bad faith”). “While this circuit does not require a
showing of malice in order to find bad faith, mere negligence in losing or destroying records
is not sufficient to draw an adverse inference.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310
(11th Cir. 2009).
i.
Alteration of January 30, 2011 Report
Weighing the Flury factors, the Court finds that spoliation sanctions are warranted
against Defendant Filbeck for the alteration and destruction of the original January 30, 2011
Report. As to the first and second factors, Defendant Filbeck contends that Plaintiffs
suffered no prejudice because the unaltered Report was produced by Liberty Mutual prior to
the close of discovery on July 1, 2013. “Although it is true that the [Plaintiffs] obtained the
[January 30, 2011 Report] through other means, that fact does not alleviate the damage done
to the [Plaintiffs’] case when very relevant evidence, such as the [January 30, 2011 Report], is
Although these specific factors are enumerated under Georgia law, the court in Flury noted that “Georgia
state law on spoliation is wholly consistent with federal spoliation principles.” Id. at 944. Therefore, “the fact
that this case is not a diversity suit has no bearing on the applicability of the law governing spoliation
sanctions as determined by the court in Flury.” Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360, 1376 n.6 (N.D.
Ga. 2008); see also In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 n.6 (N.D. Ga.
2011); Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir. 2009) (“To determine whether spoliation
sanctions are warranted, a court must consider the factors identified in Flury v. Daimler Chrysler Corp., 427 F.3d
939.”).
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not produced and is subsequently destroyed” as a result of Defendant Filbeck’s actions.
Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360, 1376 (N.D. Ga. 2008). Indeed, “[i]f relevant
evidence is not produced, for whatever reason, and then is destroyed before either party
learns of the existence of that evidence, then the absence of the relevant evidence prejudices
the party that would have relied on it to prove its case.” Id.
As in Connor, “the prejudice resulting from [Defendant Filbeck’s] failure to produce
an undisputedly relevant [piece of evidence] raises a concern that other relevant [evidence]
may have existed at the time the duty to preserve arose but [has] since been deleted.” Id. This
is precisely the concern Plaintiffs reiterate throughout their briefs. In fact, Plaintiffs’
principal piece of evidence that Defendant Filbeck destroyed Officer Middleton’s DAR is
that he altered the January 30, 2011 Report. In other words, Plaintiffs have been prejudiced
by Defendant Filbeck’s alteration and destruction of the January 30, 2011 Report “because it
raises a question of whether there were other relevant [pieces of evidence] in existence at
that time but which were also not produced” and possibly destroyed by Defendant Filbeck.
Id. This prejudice, however, can be cured through Plaintiffs’ acquisition of the unaltered
Report from Liberty Mutual and an adverse jury instruction.
With respect to the third factor, the Court finds that the evidence is important to
Plaintiffs’ case because it directly relates to what Defendant Filbeck knew, and the actions he
took, leading up to Plaintiffs’ arrest. As discussed above, the creation of the false Report and
the subsequent alteration was highly prejudicial to Plaintiffs. Moreover, the original false
Report and the altered Report are relevant to whether Defendant Filbeck objectively acted in
good faith such that he would be entitled to qualified immunity. (See Doc. 75 at 22-23.)
As to the fourth factor, the Court concludes that Defendant Filbeck acted in bad
faith in altering the Report. In making this determination, the Court must “weigh the degree
of the spoliator’s culpability against the prejudice to the opposing party.” Flury, 427 F.3d at
946. Defendant Filbeck is clearly culpable for the destruction of the January 30, 2011 Report.
During the Sanctions Hearing, he testified that he was aware that altering the Report would
delete the original Report from the system. (Doc. 94 at 34.) In addition, when questioned
during his deposition and at the Sanctions Hearing regarding the submission of the Report
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to Liberty Mutual, Defendant Filbeck was evasive about his actions related to the Report.
Although Defendant Filbeck contends that he testified truthfully about the submission of
“the case number with the information contained in it [to Liberty Mutual],” (Doc. 37 at 8:34), Defendant Filbeck’s testimony was, at best, misleading. Defendant Filbeck’s attempt to
diminish the significance of his actions is also without merit. The name of the reporting
officer is certainly material to the reliability of the Report – in that it was actually made by
the purported victim. That Defendant Filbeck falsified the original Report and provided it to
an insurance company is also important as is his attempt to conceal his fraudulent behavior
when confronted with this lawsuit. Accordingly, even though the prejudice to Plaintiffs is
mitigated by the fact that they obtained the original Report from Liberty Mutual, in light of
the degree of Defendant Filbeck’s culpability, the Court finds that Defendant Filbeck acted
in bad faith when he knowingly altered and deleted the original Report.
Weighing the Flury factors,2 the Court finds that spoliation of evidence has occurred
and that sanctions are warranted. This spoliation, however, can be cured by a sanction less
severe than dismissal of Defendant Filbeck’s answer and the entry of a default judgement. In
light of the degree of prejudice to Plaintiffs and Defendant Filbeck’s culpability, the Court
finds that a jury instruction on the spoliation of the original Report is the most appropriate
sanction.
ii.
Missing Camera and Pictures
All four applicable Flury factors weigh in favor of imposing sanctions with regard to
the spoliation of the camera and photos. As to factors one and three, Plaintiffs clearly were
prejudiced by the destruction of the evidence which is certainly of practical importance in
this case. One of the central issues in this case is whether Defendant Filbeck had arguable
probable cause to believe that Plaintiffs were committing a crime at the time he ordered their
arrest. Arguable probable cause exists where “reasonable officers in the same circumstances
and possessing the same knowledge as the Defendants could have believed that probable
“The fifth Flury factor is irrelevant where, as here, the spoliated evidence is not the subject of expert
testimony.” Pinkney v. Winn-Dixie Stores, Inc., No. 14-CV-075, 2015 WL 858093, at *7 (S.D. Ga. Feb. 27, 2015).
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cause existed to arrest Plaintiff.” Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir.
2004). Determining what Defendant Filbeck knew at the time he ordered Plaintiffs’ arrest is
therefore critical to this case.
Plaintiffs assert that their missing camera contained photos showing the Notice
affixed to the Property on January 29, 2011, a day before Defendant Filbeck visited the
Property and filed the January 30, 2011 Report. Such photos would certainly be relevant to
whether Defendant Filbeck knew that Ocwen had foreclosed on the Property and hired
MDM to prepare it for resale. Defendant Filbeck, however, contends that because there “is
no concrete evidence that the photograph ever existed,” this is a classic case of “‘he said, she
said’ that may ultimately require a jury to decide who is telling the truth, but it is not
something that is appropriate for a spoliation sanction.” (Doc. 96 at 10.)
Contrary to Defendant Filbeck’s assertion, the issue is not whether Plaintiffs have
“concrete evidence” that the camera contained a specific photo showing the Notice affixed
to the Property on January 29, 201, but rather whether Defendant Filbeck tampered with or
destroyed a camera purporting to contain such photos. “To require a party to show, before
obtaining sanctions, that unproduced evidence contains damaging information would simply
turn ‘spoliation law’ on its head.” Brown v. Chertoff, 563 F. Supp. 2d 1372, 1379 (S.D. Ga.
2008); Pinkney v. Winn-Dixie Stores, Inc., No. 14-CV-075, 2015 WL 858093, at *5 (S.D. Ga.
Feb. 27, 2015) (“Allowing Defendant to avoid spoliation sanctions through the testimony of
its witness that the destroyed evidence would not have benefited Plaintiff would turn
spoliation law on its head.”); see also Residential Funding Corp. v. Degeorge Financial Corp., 306
F.3d 99, 109 (2d Cir. 2002) (“Courts must take care not to hold the prejudiced party to too
strict a standard of proof regarding the likely contents of the destroyed or unavailable
evidence, because doing so would subvert the purposes of the adverse inference, and would
allow parties who have destroyed evidence to profit from that destruction.” (alterations
omitted) (internal quotation marks omitted)). In other words, it is the tampering of the
camera that is relevant for purposes of determining whether spoliation sanctions are
warranted. Without the camera, Plaintiffs are prejudiced because it is impossible to prove
exactly what photos were on the camera. See Pinkney, 2015 WL 858093, at *5 (finding that
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the plaintiff was prejudiced, despite the testimony of the defendant’s witness that the missing
photos “didn’t really show anything,” because “Plaintiff is unable to rebut [the witness’s]
testimony without the ability to view the photographs themselves”); Brown, 563 F. Supp. 2d
at 1379 (finding that the plaintiff was prejudiced by the loss of notes relevant to plaintiff’s
case, despite the government’s contention that is was “pure speculation that the notes
contained any damaging evidence”); Woodard, 801 F. Supp. 2d at 1373 (finding that the
plaintiff was prejudiced by the loss of a videotape that could have contained evidence
relevant to plaintiff’s case); see also Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1282 (M.D. Fla.
2009) (“Whether the spoliated evidence would have actually been detrimental to the case is
irrelevant at this point, because no one, other than perhaps the Defendants themselves, can
know for certain.”).
As to the second factor, although the prejudice to Plaintiffs can be cured to some
extent through the testimony of Plaintiffs and other MDM personnel, this testimony hardly
works a complete cure to the loss of the camera. Certainly, “the absence of [the camera]
makes [Plaintiffs’] case more difficult to prove.” Brown, 563 F. Supp. 2d at 1379. As noted
above, a central dispute in this case is whether Defendant Filbeck saw the Notice affixed to
the Property on January 30, 2011. Although Plaintiffs can introduce testimony that a photo
of the Notice was taken on January 29, 2011, Defendant Filbeck disputes that contention,
claiming that there was no photo on the camera depicting the Notice affixed to the Property.
Thus, “while the witnesses’ testimonies slightly alleviate the prejudice caused by [Defendant
Filbeck’s] spoliation, they do not cure it.” Pinkney, 2015 WL 858093, at *6; see also Brown, 563
F. Supp. 2d at 1379 (“On balance, then, the available testimony of the individuals involved . .
. alleviates only some, but not all, of the prejudice stemming from the spoliation.”); Woodard,
801 F. Supp. 2d at 1373-74 (finding that prejudice to the plaintiff could be cured only
partially by the testimony of witnesses).
As to the fourth factor, the Court finds that the circumstances surrounding the loss
of Plaintiffs’ camera warrant a finding of bad faith. It is undisputed that Defendant Filbeck
illegally accessed and downloaded photos from Plaintiffs’ camera while Plaintiffs were in jail
and without the knowledge or authorization of the Butts County Sheriff’s Department or a
15
warrant. There is no evidence that the camera was returned to Plaintiffs; nor is there any
evidence that other Butts County personnel took possession or control of the camera after
Defendant Filbeck accessed it. “Thus, at the least, Defendant [Filbeck] failed to safeguard
evidence which he unquestionably had a duty to preserve.” Pinkney, 2015 WL 858093, at *7.
Indeed, the fact that Defendant Filbeck downloaded the photos onto his personal computer
indicates that he was aware of the potential for litigation at that time. Yet, Defendant Filbeck
failed to take any action to safeguard the camera. Accordingly, the culpability for the loss of
the camera rests solely with Defendant Filbeck. See Flury, 427 F.3d at 946 (finding that the
plaintiff was culpable for the loss of vehicle because he “was the only party in a position to
preserve the vehicle and failed to do so”); Pinkney, 2015 WL 858093, at *7 (finding that
Defendant was culpable for loss of photos because it “was the only party to possess the
photographs and the only party who could preserve them”).
Moreover, Defendant Filbeck had a strong personal motive to tamper with Plaintiffs’
camera and destroy any damaging photos. Not only is the camera relevant to the probable
cause inquiry, but had the camera contained photos of the Notice affixed to the Property on
January 29, 2011, Defendant Filbeck’s claim that the Property was burglarized on January 30,
2011, would have been called into question. This, in turn, would have called into question
the legality of the insurance claim Defendant Filbeck submitted to recover for his missing
property. Although Defendant Filbeck asserts that he returned the camera and did not delete
any photos, his assertions are not credible. The disappearance of the camera has not been
explained and the only evidence shows that Defendant Filbeck broke into the impound lot,
broke into the truck, and illegally accessed the photos on the camera. Thereafter, the camera
disappeared. These circumstances certainly indicate bad faith. See Se. Mech. Servs., Inc. v. Brody,
657 F. Supp. 2d 1293, 1300 (M.D. Fla. 2009) (finding that “the circumstances surrounding
the destruction of data from Individual BlackBerries indicate[d] bad faith” where the
defendants “had both the motive and the opportunity to wipe the BlackBerries of data”).
The circumstances surrounding Defendant Filbeck’s disclosure of the illegally
obtained photos are also troubling. Defendant Filbeck did not disclose the photos or his
actions in his initial disclosures or in his responses to Plaintiffs’ interrogatories. Nor did he
16
produce the photos in response to Plaintiffs’ requests for production. Defendant Filbeck did
not inform Plaintiffs of his actions or his possession of any of the photos until the time of
his deposition when he attempted to use them to support his defense of qualified immunity.
Such actions cannot be said to be made in good faith.
Considering Defendant Filbeck’s culpability for the loss of the camera, his motives
for tampering with the camera, and his questionable conduct surrounding the production
and use of the illegally obtained photos, the Court finds that “this is not a circumstance of
inadvertent destruction of evidence or negligence in the loss of material data from which the
Court is being asked to infer bad faith. Rather, it is a case of knowing and willful disregard
for the clear obligation to preserve evidence that was solely within the possession and
control of [Defendant Filbeck] and whose contents have no other source than that which
has now been spoliated.” Swofford, 671 F. Supp. 2d at 1282. Under such circumstance, the
prejudice to the Plaintiffs is substantial; Defendant Filbeck’s bad faith is clear; and sanctions
are warranted.
Contrary to Plaintiffs’ contention, however, a sanction less severe than entry of a
default judgement will suffice. If this case proceeds to trial, the Court will instruct the jury
that the absence of the camera gives rise to a rebuttable presumption that the camera
contained evidence that the Property appeared abandoned and that the Notice was affixed to
the Property on January 29, 2011. The Court will also instruct the jury that Defendant
Filbeck is free to introduce evidence to rebut that adverse presumption. However,
Defendant Filbeck is prohibited from introducing those photos he illegally downloaded
from the camera. This sanction alleviates the prejudice to Plaintiffs, while also eliminating
any unfair advantage regarding the evidence presented at trial.
iii.
Officer Middleton’s Daily Activity Report
With respect to the missing DAR, Plaintiff has failed to present direct or
circumstantial evidence demonstrating that Defendant Filbeck acted in bad faith in losing
the DAR, or evidence showing that Defendant Filbeck engaged in an affirmative act
causing the DAR to be lost. Although Officer Middleton testified that he told Defendant
Filbeck that he could look up the information regarding his encounter with MDM in the
17
DAR, Defendant Filbeck disputes ever speaking with Officer Middleton about the
encounter or Plaintiffs’ arrest. While the Court found Defendant Filbeck’s testimony to be
less than credible, there is no evidence that Defendant Filbeck had access to Officer
Middleton’s DAR or the box where it was filed. Nor is there any evidence that Defendant
Filbeck ever came into possession of the DAR.
Without establishing that Defendant Filbeck ever knew or came in to possession of
the DAR, Plaintiffs cannot establish that Defendant Filbeck had a duty to preserve it or that
he acted in bad faith in losing it. Thus, Plaintiffs have failed to meet their burden of
establishing that sanctions are warranted against Defendant Filbeck for the loss of Officer
Middleton’s DAR.
B.
Conceal Officer Middleton’s Identity
Plaintiffs seek sanctions against Defendant Filbeck for allegedly concealing the
identity of Officer Middleton. Plaintiffs have brought their Motion pursuant to the Court’s
inherent power, which grants courts “the authority to impose reasonable and appropriate
sanctions.” Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335 (11th Cir.
2002) (internal quotation marks omitted). This authority is derived from the Court’s need “to
manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.”
Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). “While the other sanction mechanisms only
reach certain individuals or conduct, ‘the inherent power extends to a full range of litigation
abuses’ and ‘must continue to exist to fill in the interstices.’” Peer v. Lewis, 606 F.3d 1306,
1314 (11th Cir. 2010) (quoting Chambers, 501 U.S. at 46). In fact, the “inherent power of a
court can be invoked even if procedural rules exist which sanction the same conduct.”
Chambers, 501 U.S. at 46. Because of its very potency, however, the inherent power of the
Court must be exercised with restraint and discretion. Id. at 44.
“The key to unlocking a court’s inherent power is a finding of bad faith.” Barnes v.
Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998). Bad faith exists where a party or attorney
knowingly or recklessly raises a frivolous argument, delays or disrupts the litigation, or
hampers the enforcement of a court order. Thomas v. Tenneco Packaging Co., 293 F.3d 1306,
1320 (11th Cir. 2002). “Sanctions authorized under the court’s inherent powers include the
18
striking of frivolous pleadings or defenses, disciplining lawyers, punishing for contempt,
assessment of attorney’s fees, and outright dismissal of a lawsuit.” Allapattah Servs., Inc. v.
Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005) (collecting cases).
Plaintiffs contend that Defendant Filbeck acted in bad faith and disrupted this
litigation by failing to identify Officer Middleton in response to their interrogatories and
during Defendant Filbeck’s deposition. Although Defendant Filbeck steadfastly denies
having any knowledge of an officer responding to the Property on January 31, 2011, or ever
talking to Officer Middleton regarding Plaintiffs’ arrest, the Court finds that Defendant
Filbeck’s testimony was not credible. Unlike Defendant Filbeck, Officer Middleton has no
motive to fabricate his testimony or conceal the conversation with Defendant Filbeck.
Furthermore, Officer Middleton and Defendant Filbeck had worked with each other for
years and Officer Middleton was aware that Defendant Filbeck lived at the Property. (Doc.
94 at 78:10-12.) Defendant Filbeck admitted that he would have expected a fellow officer to
tell him if an incident had occurred at his home. (Id. at 60:24-61:3.) In light of Defendant
Filbeck’s attempts at evasion during his deposition and at the Sanctions Hearing, Officer
Middleton’s testimony, and the surrounding circumstances, the Court does not credit
Defendant Filbeck’s testimony concerning whether he knew of Officer Middleton’s response
to the Property on January 31, 2011. Accordingly, Plaintiffs’ Motion for Sanctions is
GRANTED as to their claims that Defendant Filbeck acted in bad faith by concealing the
identity of Officer Middleton.
In light of Defendant Filbeck’s spoliation of material evidence and attempted
concealment of Officer Middleton’s identity, the Court finds that requiring Defendant
Filbeck to pay Plaintiffs’ costs and attorney’s fees incurred in connection with the instant
Motion is appropriate. Plaintiffs contend that their attorneys have expended over 1,000
hours and approximately $15,000 to $20,000 in costs. However, it is unclear how much of
these expenses are related to the instant Motion and are attributable to Defendant Filbeck’s
misconduct. Furthermore, the Eleventh Circuit has mandated that “when exercising its
discretion to sanction under its inherent power, a court must take into consideration the
financial circumstances of the party being sanctioned.” Martin v. Automobili Lamborghini
19
Exclusive, Inc., 307 F.3d 1332, 1337 (11th Cir. 2002). Given that the record is devoid of any
information regarding Defendant Filbeck’s financial circumstances, the Court cannot assess
the appropriate amount of costs and fees. Accordingly, within twenty-one (21) days of the
date of this Order, Plaintiffs shall file the appropriate brief and supporting documentation
regarding the expenses and fees incurred in connection with this Motion. Within fourteen
(14) days thereafter, Defendant Filbeck shall file his opposition and any supporting
documentation. Plaintiffs will then have fourteen (7) days to respond. If necessary, the Court
will set a hearing to determine the appropriate amount of fees and costs.
II.
Sanctions against Attorney Morris
Plaintiffs have moved for sanctions against Attorney Morris for failing to disclose the
identity of Officer Middleton and allegedly concealing the whereabouts of Sergeant Mundy.
In addition, Plaintiffs contend that Attorney Morris acted in bad faith by failing to disclose a
known conflict in representing Sergeant Mundy. As with their claims against Defendant
Filbeck, Plaintiffs have brought their claims pursuant to the Court’s inherent power.
Under the inherent power, “a federal court has the power to control admission to its
bar and to discipline attorneys.” Chambers, 501 U.S. at 43. However, “before a court can
impose sanctions against a lawyer under its inherent power, it must find that the lawyer’s
conduct constituted or was tantamount to bad faith.” Thomas, 293 F.3d 1306, 1320 (11th Cir.
2002). As noted above, bad faith exists where a party or attorney knowingly or recklessly
raises a frivolous argument, delays or disrupts the litigation, or hampers the enforcement of a
court order. Id. “When considering sanctions [against an attorney] under the court’s inherent
power, the threshold of bad faith conduct is at least as high as the threshold of bad faith
conduct for sanctions under [28 U.S.C.] § 1927.” Peer, 606 F.3d at 1316. “So sanctions that
are impermissible under § 1927 are also impermissible under a district court’s inherent
powers.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1252 (11th Cir. 2007).
“Section 1927 is directed at the unreasonable and vexatious multiplication of
proceedings.” Peer, 606 F.3d at 1314 (citing 28 U.S.C. § 1927). This statute requires attorneys
“to avoid dilatory tactics throughout the entire litigation,” id., and allows the Court to “assess
attorney’s fees against litigants, counsel, and law firms who willfully abuse the judicial
20
process by conduct tantamount to bad faith.” Malautea v. Suzuki Motor Co., 987 F.2d 1536,
1544 (11th Cir. 1993). “To justify an award of sanctions pursuant to section 1927, an
attorney must engage in unreasonable and vexatious conduct; this conduct must multiply the
proceedings; and the amount of the sanction cannot exceed the costs occasioned by the
objectionable conduct.” Peer, 606 F.3d at 1316.
A.
Conceal Officer Middleton’s Identity
Plaintiffs contend that Attorney Morris acted in bad faith and disrupted this litigation
by failing to identify Officer Middleton in response to Webster’s Requests, which Plaintiffs
assert were “specifically designed to obtain information about the January 31, 2011, call to
the property . . . and the identity of the Deputy who responded.” (Doc. 93 at 2.) As noted
above, in response to Webster’s Requests, Butts County, through Attorney Morris, lodged
wholesale objections, claiming that Butts County “exercises no control over the law
enforcement functions of the Butts County Sheriff” and that it was “not aware that any
individuals it employs visited or investigated [the Property] on January 31, 2011.” (Doc. 27 at
36-41.) Butts County also stated that it was not “the custodian of documents prepared or
retained by the Butts County Sheriff.” (Id.) According to Plaintiffs, Officer Middleton should
have been identified in response to Webster’s Requests, regardless of whether Officer
Middleton “worked for the County or the Sheriff’s Department.” (Doc. 63.) Of course,
Attorney Morris was aware that an officer had responded to a 911 call at the Property on
January 31, 2011, as evidenced by the CAD Report Attorney Morris produced on the same
date he served Butts County’s responses. The question, then, is whether Attorney Morris
acted in bad faith and multiplied the proceedings by improperly objecting to Webster’s
Requests and failing to identify Officer Middleton. The Court finds that de did not.
The Eleventh Circuit has held “that negligent conduct, standing alone, will not
support a finding of bad faith under § 1927– that is, an attorney’s conduct will not warrant
sanctions if it simply fails to meet the standard of conduct expected from a reasonable
attorney.” Amlong, 500 F.3d at 1241-42; see also Schwartz v. Millon Air, Inc., 341 F.3d 1220,
1225 (11th Cir. 2003) (“Section 1927 is not about mere negligence.”). Instead, “an attorney’s
conduct must be particularly egregious to warrant the imposition of sanctions – the attorney
21
must knowingly or recklessly pursue a frivolous claim or needlessly obstruct the litigation of
a non-frivolous claim.” Id. “Bad faith is the touchstone.” Schwartz, 341 F.3d at 1225.
For instance, in Malautea, the Eleventh Circuit affirmed the district court’s award of
sanctions against the defendants and their counsel, concluding that “the defendants and their
attorneys engaged in an unrelenting campaign to obfuscate the truth.” 987 F.2d at 1544. In
reaching this conclusion, the court found that defense counsel acted in bad faith and
unreasonably multiplied the proceedings by: (i) improperly objecting to interrogatories in
order to avoid revealing certain information; (ii) providing answers that were incomplete and
unreasonably narrow; (iii) requiring the district judge to issue three orders to compel
information that should have been produced without any judicial prompting; (iv) delaying
(either deliberately or carelessly) compliance with the Magistrate Judge’s orders to produce
deposition transcripts; and (v) failing to comply with a court order to produce certain
discoverable material that the defendants, with the assistance of their counsel, attempted to
cover up. Id. at 1544-45.
Unlike in Malautea, Plaintiffs have failed to establish that Attorney Morris acted in
bad faith and multiplied these proceedings by failing to identify Officer Middleton. Attorney
Morris did not assist in covering up material evidence or fail to comply with a Court order.
Nor did he engage in a pattern of obstructive behavior. Although Plaintiffs assert that they
“requested the identity of Middleton numerous times,” (Doc. 93 at 3), the record reflects
that Plaintiffs only sought this information in forms to which Attorney Morris could comply
on two occasions – (1) Webster’s Requests in January 2013; and (2) an email on June 11,
2013, a day after Defendant Filbeck’s deposition. Even if Plaintiffs believed Attorney Morris
improperly objected to Webster’s Requests, they could have moved to compel. Alternatively,
they could have requested the information from the Butts County Sheriff’s Department,
Defendant Filbeck, or Sheriff Pope. However, unlike in Malautea, Plaintiffs did nothing.
In addition, despite receiving the CAD Report with all the necessary information to
identity Officer Middleton on February 19, 2013, Plaintiffs made no inquiry regarding the
Report until Defendant Filbeck’s deposition, nearly four months later. Even then, Plaintiffs
did not specifically question Defendant Filbeck regarding the unit number listed on the
22
CAD Report. Instead, they waited until after Defendant Filbeck’s deposition before
demanding that Attorney Morris identify the officer listed on the CAD Report. The next
day, Plaintiffs discovered Officer Middleton’s identity during Sheriff Pope’s deposition. In
short, Plaintiffs’ efforts to identify Officer Middleton were dilatory.
While Attorney Morris certainly could have undertaken a more thorough
investigation to identify Officer Middleton, his conduct does not rise to the level of bad faith
required to impose sanctions under § 1927. Furthermore, unlike in Malautea, Attorney
Morris’ actions, or lack thereof, did not multiply these proceedings. Accordingly, Plaintiffs
have failed to establish the requisite bad faith for awarding sanctions under § 1927 or the
Court’s inherent power.
However, the inherent power and § 1927 are not the only mechanisms by which the
Court can impose sanctions against attorneys for discovery abuses. Under Federal Rule of
Civil Procedure 26(g), an attorney is required to certify that the discovery responses provided
are complete and correct to the best of the attorney’s knowledge, information, and belief
formed after a reasonable inquiry. Fed. R. Civ. P. 26(g)(1)(A). The attorney must also certify
that the response is not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation. Fed. R. Civ. P. 26(g)(1)(B).
Rule 26(g) mandates that the Court, on motion or on its own, impose sanctions if a
certification violates the rule without substantial justification. Fed. R. Civ. P. 26(g)(3); see also
Malautea, 987 F.2d at 1545 (“Rule 26(g) makes the imposition of ‘an appropriate sanction’
mandatory if a discovery request, response, or objection is interposed for an improper
purpose.”). “The sanction may include an order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.” Fed. R. Civ. P. 26(g)(3).
Attorney Morris is the attorney who signed Butts County’s responses to Webster’s
Requests and, therefore, was responsible for the accuracy and propriety of them. (See Doc.
27 at 41.) During the Sanctions Hearing, the Court specifically questioned Attorney Morris
on his efforts to comply with his obligations under Rule 26. Attorney Morris testified that he
first became aware of Officer Middleton’s identity during Sheriff Pope’s deposition in June
of 2013. (Doc. 94 at 151:19-152:4.) When questioned about what he had done prior to then,
23
Attorney Morris responded that he was not aware of ever being asked to identify Officer
Middleton. (Id. at 152:7-8.) The Court then pointed to Butts County’s responses to Webster’s
Requests. Consistent with Butts County’s response that it was not “the custodian of
documents prepared or retained by the Butts County Sheriff,” (Doc. 27 at 36-41), Attorney
Morris testified that Butts County “wouldn’t have that information.” (Id. at 152:21-22.)
Contrary to Butts County’s responses and Attorney Morris’ testimony, Butts County
did have that information. The CAD Report was generated by the Butts County 911 system,
which is an agency of the County and not part of the Sheriff’s Department. (Doc. 94 at
83:19-84:6.) According to Officer Middleton, if Plaintiffs had contacted the Sheriff’s
Department with the case number generated by the CAD Report, the Sheriff’s Department
would have contacted the 911 system, which, in turn, would have allowed the Sheriff’s
Department to identify Officer Middleton and provide Plaintiffs with the information
regarding the 911 call. (Doc. 94 at 92:20-93:1.) Although Attorney Morris testified,
somewhat equivocally, that the sheriff told him that “we don’t have a daily activity log so we
can’t figure out who would have been out there,” (id. at 155:4-5), Attorney Morris offers no
explanation for why he or the Sheriff’s Department did not simply obtain the CAD Report
and identify the officer who responded to the call.
As the Court pointed out during the Sanctions Hearing, it would have taken a mere
three steps for Attorney Morris to determine the identity of Officer Middleton – (1) ask the
sheriff to “find out who responded to the house;” (2) the sheriff would then request the
CAD Report from the 911 system; and (3) match the badge number listed on the CAD
Report to Officer Middleton. (Id. at 157:22-158:1.) In fact, it would have taken even less than
three steps, given that Attorney Morris had already obtained the CAD Report at the time he
submitted Butts County’s responses to Webster’s Requests. Attorney Morris simply could
have presented the CAD Report to the sheriff and requested that he identify the officer
whose badge number appeared on the Report. Had he done so, Attorney Morris could have
easily identified Officer Middleton, as evidenced by the ease with which Sheriff Pope
identified Officer Middleton during his deposition. Yet, based on Attorney Morris’
testimony during the Sanctions Hearing and his supplemental declaration, Attorney Morris
24
never presented anyone at the Sheriff’s Department with the CAD Report in order to
identify Officer Middleton. Attorney Morris’ failure to do so demonstrates a failure to
undertake a reasonable inquiry into the correctness of Butts County’s responses to Webster’s
Requests. See Fed. R. Civ. P. 26, Advisory Committee Notes (1983 Amendment)
(“Ultimately, what is reasonable is a matter for the court to decide on the totality of the
circumstances.”).
Moreover, to the extent Attorney Morris maintains that Butts County was not the
appropriate party from which to request information regarding the January 31, 2011 call, the
Court finds that interposing such an objection would be improper. Requiring Plaintiffs to
resubmit Webster’s Requests to Sheriff Pope, Defendant Filbeck, or the Butts County
Sheriff’s Department would have resulted in an unnecessary delay and needlessly increased
the cost of this litigation, as would requiring Plaintiffs to move to compel the disclosure of
such information from Butts County. Attorney Morris represented all Defendants in this
action and was aware of the information Plaintiffs were attempting to uncover. Officer
Middleton’s identity is highly relevant to the probable cause analysis in this case, and
Attorney Morris’ failure to disclose it is without substantial justification. Accordingly,
because Attorney Morris violated his obligations under Rule 26(g), the Court must impose
an “appropriate sanction.” Malautea, 987 F.2d at 1545; Chudasama v. Mazda Motor Corp., 123
F.3d 1353, 1372 (11th Cir. 1997) (“The decision whether to impose sanctions under Rule
26(g)(3) is not discretionary. Once the court makes the factual determination that a discovery
filing was signed in violation of the rule, it must impose “an appropriate sanction.”).
Although Rule 26(g) explicitly authorizes the imposition of sanctions for reasonable
expenses and attorney’s fees, “the decision of what sanction is appropriate . . . is committed
to the district court’s discretion.” Chudasama, 123 F.3d at 1372. In fashioning the appropriate
sanction, the Court considers the nature of the sanction “in light of the particular
circumstances.” Fed. R. Civ. P. 26, Advisory Committee Notes (1983 Amendment). The
Court must also bear in mind that “discovery sanctions are intended to penalize the
offending party and deter others from engaging in similar conduct.” Steed v. EverHome
Mortgage Co., 308 F. App’x 364, 371 (11th Cir. 2009); see also Fed. R. Civ. P. 26, Advisory
25
Committee Notes (1983 Amendment) (“Sanctions to deter discovery abuse would be more
effective if they were diligently applied ‘not merely to penalize those whose conduct may be
deemed to warrant such a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.’” (quoting National Hockey League v. Metropolitan
Hockey Club, 427 U.S. 639, 643 (1976)).
In considering the appropriate sanction in this case, the Court cannot overlook
Plaintiffs’ dilatory efforts to identify Officer Middleton. As discussed above, after receiving
Butts County’s responses to Webster’s Requests, Plaintiffs did not move to compel or
resubmit the Requests to the Sheriff’s Department, Defendant Filbeck, or Sheriff Pope. In
addition, after receiving the CAD Report in February 2011, Plaintiffs made no attempt to
identify the officer whose badge number appeared on the Report until June 11, 2013. The
very next day, Plaintiffs discovered Officer Middleton’s identity during Sheriff Pope’s
deposition. Thus, the costs and expenses Plaintiffs incurred to identity Officer Middleton
were minimal.3
Nevertheless, Attorney Morris’ conduct also cannot be overlooked. Attorney Morris
had a clear obligation to make a reasonable inquiry into Butts County’s responses to
Webster’s Requests, and to refrain from interposing improper objections. Attorney Morris’
testimony during the Sanctions Hearing and supplemental affidavit make clear that Attorney
he failed to make a reasonable inquiry as required under Rule 26. As such, the Court finds
that the appropriate sanction against Attorney Morris is a $500 fine made payable to the
Court. See Sure Fill & Seal, Inc. v. GFF, Inc., No. 08-CV-882, 2010 WL 3125593, at *5 (M.D.
Fla. Aug. 4, 2010) (noting that Rule 26(g) authorizes a court to “impose punitive sanctions,
such as a monetary fine payable to the court, or a non-monetary directive”). This sanction
properly punishes Attorney Morris for failing to comply with his obligations under Rule
26(g), while also deterring similar future misconduct.
Because of the minimal expense Plaintiffs incurred in identifying Officer Middleton and because Plaintiffs
have not moved for sanctions against Butts County, the Court, in its discretion, declines to sanction Butts
County under Federal Rule of Civil Procedure 37 for giving incomplete and incorrect responses to discovery
requests. See Chudasama, 123 F.3d at 1366 (“District courts enjoy substantial discretion in deciding whether
and how to impose sanctions under Rule 37.”)
3
26
B.
Conceal Sergeant Mundy’s Whereabouts and a Known Conflict
Plaintiffs contend that Attorney Morris acted in bad faith and disrupted this litigation
by concealing the whereabouts of Sergeant Mundy. The Court disagrees. As discussed above,
the record is devoid of any evidence that Attorney Morris affirmatively represented to
Plaintiffs’ counsel that he represented all law enforcement personnel in this matter. Rather,
the record reflects that Attorney Morris offered to assist Plaintiffs, as a professional courtesy,
in locating Mundy because he had represented him in a prior, unrelated lawsuit. Although
Attorney Morris undertook multiple efforts to locate Mundy’s contact information,
ultimately he was unable to do so. There was no evidence presented during the Sanctions
Hearing, and there is nothing in the record, indicating that Attorney Morris acted in bad
faith with regard to Mundy’s contact information or location.
Plaintiffs further contend that their case has been hampered because Attorney Morris
knew, based on an earlier conversation around the time of the commencement of this case,
that he had a conflict with representing Mundy in this case. Although there would have been
a conflict had Attorney Morris actually represented Mundy, he did not do so. Mundy was
provided separate legal counsel during his deposition, and he testified that he had no contact
with Attorney Morris following their conversation regarding the unrelated case. (Doc. 43 at
48:7-15.) Plaintiffs have cited no authority requiring Attorney Morris to disclose a possible
conflict with representing a potential witness. Accordingly, Plaintiffs have failed to establish
that sanctions are warranted against Attorney Morris for his conduct with respect to Mundy.
CONCLUSION
Based on the forgoing, Plaintiffs’ Motion for Sanctions (Doc. 25) is GRANTED in
part and DENIED in part. If this case proceeds to trial, the Court will provide the jury with
the appropriate instructions regarding Defendant Filbeck’s spoliation of the original January
30, 2011 Report and Plaintiffs’ camera. In addition, Defendant Filbeck is ORDERED to
reimburse Plaintiffs for the reasonable expenses and fees incurred in connection with this
Motion. Within twenty-one (21) days of the date of this Order, Plaintiffs shall file the
appropriate brief and supporting documentation regarding the expenses and fees incurred in
connection with this Motion. Within fourteen (14) days thereafter, Defendant Filbeck shall
27
file his opposition and any supporting documentation. Plaintiffs will have seven (7) days to
reply. If necessary, the Court will set a hearing to determine the appropriate amount of fees
and costs.
Having determined that sanctions are warranted in this case, the Court feels
compelled to comment on the deplorable conduct exhibited by the attorneys for Plaintiffs
and Defendants throughout this litigation. During depositions, the attorneys repeatedly
raised impermissible objections in violation of Federal Rule of Civil Procedure 30. In fact,
during one deposition, counsel even required the Court to intervene. During written
discovery, defense counsel failed to comply with his obligations under Rule 26. Counsels’
behavior during the Sanctions Hearing was even more egregious, especially Plaintiffs’
counsel’s ill-advised decision to attempt to physically drag Attorney Morris to the podium.
This behavior required the Court to repeatedly admonish the attorneys to conduct
themselves in a civil and profession manner.
“The Federal Rules of Civil Procedure were adopted in 1937 in the hope of securing
‘the just, speedy, and inexpensive determination of every action.’” Malautea, 987 F.2d at 1546
(quoting Fed. R. Civ. P. 1). “The discovery rules in particular were intended to promote the
search for truth that is the heart of our judicial system. However, the success with which the
rules are applied toward this search for truth greatly depends on the professionalism and
integrity of the attorneys involved.” Id. It is therefore appalling when attorneys, like the ones
in this case, patently disregard the discovery rules and compromise their professionalism for
the sake of their clients. As one court opined:
Discovery is not a game of cat and mouse, of continual pursuit and near
capture by one party and endless escape by the other. It is intended to be a
self-executing, extrajudicial exercise that depends upon the parties' careful
attention to and compliance with the rules. Judicial involvement should be
reserved for those genuine disputes that infrequently occur about the scope of
discovery or some asserted privilege. But far too frequently courts are forced
to deal with dawdling, foot-dragging, discourteous, or mean-spirited litigants
or counsel about petty disputes that could have been avoided had counsel
simply lived up to their clear obligations under the rules.
King v. Dillon Transp., Inc., No. 11-CV-028, 2012 WL 592191, at *3 (S.D. Ga. Feb. 22, 2012).
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What the Court finds most disturbing about this case, however, is that the Parties and
their counsel appear totally unwilling to be forthcoming with each other and the Court.
Attorneys are officers of the court, and as such “owe duties of complete candor and primary
loyalty to the court before which they practice. An attorney’s duty to a client can never
outweigh his or her responsibility to see that our system of justice functions smoothly.”
Malautea, 987 F.2d at 1546. Of course, the Court does not mean to deter a litigant or their
counsel from advancing any claim or defense arguably supported by law or fact. However,
the undersigned expects counsel to conduct themselves with candor, professionalism, and
civility and avoid the disruption and manipulation of the discovery process. Given the
conduct exhibited during this litigation, the attorneys are encouraged to review the Federal
Rules of Civil Procedure, this Court’s Local Rules, and the Georgia Rules of Professional
Conduct.
SO ORDERED, this 31st day of March, 2016.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT
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