Lewis et al v. The City of Brunswick, Georgia et al

Filing 37

ORDER granting Defendants' 29 Motion to Compel and Motion for Sanctions. Plaintiffs are ORDERED to supplement all interrogatory responses in this matter with verification and to serve those supplemental responses on Defendants' counsel on or before 9/15/15. Furthermore, Plaintiffs' counsel shall pay the sum of $100.00 to Defendants on or before 9/15/15. Signed by Magistrate Judge R. Stan Baker on 9/10/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

CALVIN LEWIS, and MELVINA LEWIS,
Plaintiffs,

CIVIL ACTION NO.: 2:14-cv-122

v.
THE CITY OF BRUNSWICK, SAM
STRICKLAND, GILBERTO COLON,
RICHARD MEEKS, JEREMY WILSON,
LEN SCHMAUCH, KATHERINE
STIREWALT,
Defendants.

ORDER
Before the Court is Defendants’ Motion for Sanctions Due to Plaintiffs’ Failure to
Provide Discovery.

(Doc. 29.)

For the reasons set forth below, Defendants’ Motion is

GRANTED.
BACKGROUND
Plaintiffs filed this action on August 15, 2014, alleging that several Brunswick, Georgia,
police officers unlawfully entered their home in violation of the Fourth Amendment to the
United States Constitution. (Doc. 1.) After the parties filed their Rule 26(f) Report, (doc. 10),
the Court entered a Scheduling Order on February 19, 2015, (doc. 16). Pursuant to that Order,
discovery in this case was due by May 22, 2015. Id. Chief Judge Lisa Godbey Wood held a
status hearing in this case on June 15, 2015. At that hearing, Chief Judge Wood extended
discovery to June 30, 2015, for the limited purpose of deposing Katherine Stirewalt and extended
the deadline for filing all motions to July 22, 2015. (Doc. 23.) Additionally, Defendants’

counsel asserted at the hearing that Plaintiffs had not yet provided their initial Rule 26(a)
disclosures or responded to Defendants’ Requests for Production of Documents or First Set of
Interrogatories. Plaintiffs’ counsel stated that the disclosures and discovery responses had been
completed and that he would hand deliver them to defense counsel on the afternoon following
the hearing. Chief Judge Wood ordered that Plaintiffs provide Defendants those disclosures and
responses by June 17, 2015. At the hearing, Plaintiffs’ counsel further acknowledged that
Defendants had recently served a Second Set of Interrogatories and stated that Plaintiffs’
responses to those requests were forthcoming.
On July 22, 2015, at 5:18 p.m., Defendants filed the instant Motion for Sanctions. (Doc.
29.)

Defendants asserted that Plaintiffs failed to produce any documents in response to

Defendants’ Requests for Production and Plaintiffs had failed to respond to Defendants’ Second
Set of Interrogatories. (Id. at pp. 2–3.) Defendants explained that Plaintiffs responded to the
first set of Defendants’ interrogatories three days after the June 15, 2015, hearing.

Id.

Defendants stated that, at that time, Plaintiffs also provided written responses to Defendants’
Requests for Production of Documents but did not provide any responsive documents. Id.
Defendants also contended that they served Plaintiffs with their Second Set of Interrogatories on
May 21, 2015, and that Plaintiffs had failed to respond. Id. To remedy Plaintiffs’ deficient
discovery responses, Defendants requested that the Court compel Plaintiffs to respond to the
discovery requests and order Plaintiffs to pay Defendants’ reasonable expenses, including
attorneys’ fees, for bringing the Motion for Sanctions.
With the Motion for Sanctions, Defendants’ counsel included a certificate attesting that
he had attempted to resolve these discovery disputes prior to filing the Motion. (Doc. 29-1.)
Specifically, Defendants’ counsel stated that he had taken the following measures: (1) raising the

lack of production of documents at the June 15, 2015, hearing; (2) mentioning the overdue
interrogatory responses during a telephone conversation with Plaintiffs’ counsel on July 13,
2015; and (3) sending an e-mail to Plaintiffs’ counsel on July 21, 2015. Id.
On August 10, 2015, Plaintiffs filed their Response to Defendants’ Motion for Sanctions.
(Doc. 32.) To that pleading, Plaintiffs attached their Responses to Defendants’ Second Set of
Interrogatories. (Id. at pp. 4–8.) The certificate of service for those discovery responses was
dated June 20, 2015. 1 Id. As for Defendants’ Requests for Production, Plaintiffs stated that they
had not provided any documents because the only responsive documents “are the Police Reports
and the records of the radio communications, which were all created by the Defendant City of
Brunswick.”

(Id. at p. 1.)

Additionally, Plaintiffs disagreed with Defendants’ counsel’s

assertion that he had made a good faith effort to resolve this dispute. Plaintiffs’ counsel issued a
certificate stating that, during the July 13, 2015, phone call, he told Defendants’ counsel that
Plaintiffs had already answered the Second Set of Interrogatories. (Id.at p. 3.) According to
Plaintiffs’ counsel, Defendants’ counsel then stated that he would check his file, and Plaintiffs’
counsel did not receive any further calls regarding this matter until Defendants filed the Motion
for Sanctions. Id.
Defendants replied to Plaintiffs’ Response on August 24, 2015. (Doc. 35.) Defendants
stated that given Plaintiffs’ Response, the only remaining discovery deficiency was Plaintiffs’
failure to verify their interrogatory responses. (Id. at p. 1.) However, Defendants maintained
that they should still be granted fees for bringing the Motion for Sanctions.

Defendants

explained that, while the instant Motion only involves their Requests for Production of
Documents and Second Set of Interrogatories, Plaintiffs’ discovery responses have been lacking
and tardy throughout this action. (Id. at pp. 2–7.) Defendants stated that Plaintiffs never
1

June 20, 2015, was a Saturday.

indicated they did not possess any documents responsive to Defendants’ Requests for Production
until Plaintiffs’ Response to the Motion for Sanctions. (Id. at pp. 3–4.) Defendants further
contended that, though the Certificate of Service for Plaintiffs’ Responses to the Second Set of
Interrogatories is dated June 20, 2015, Defendants’ counsel did not receive these discovery
responses until Plaintiffs attached them to their Response to Defendants’ Motion on August 10,
2015. (Id. at p. 7.)
Additionally, Defendants took issue with Plaintiffs’ counsel’s certification that
Defendants’ counsel did not make a good faith effort to resolve these discovery disputes.
Defendants’ counsel stated that during the July 13, 2015, telephone call with Plaintiffs’ counsel,
Defendants’ counsel stated that he would “double check his file” for Plaintiffs’ discovery
responses, only because Plaintiffs’ counsel insisted that he had already served them. (Id. at pp.
5–6.) Defendants also attached an e-mail that their counsel sent to Plaintiffs’ counsel at 10:21
a.m. on July 21, 2015. (Doc. 35-3.) In that e-mail, Defendants’ counsel stated, “[a]s I mentioned
on the phone last week, I do not believe that I ever received responses to our second set of
interrogatories. The motion deadline in this case is tomorrow. If we don’t get the responses,
then I will have to file a motion to compel.” Id. Plaintiffs’ counsel apparently never responded
to that e-mail. Additionally, Defendants’ counsel and Plaintiffs’ counsel discussed this case and
another case during a phone call on July 24, 2015, after the Motion for Sanctions was filed.
(Doc. 35, p. 6.)

During that call, Defendants’ counsel explained that Defendants would

withdraw the Motion for Sanctions if Plaintiffs provided the responsive discovery. However,
Plaintiffs did not provide the discovery until weeks later when they attached it to their Response
to the Motion for Sanctions.

DISCUSSION
I.

Defendants’ Motion to Compel Plaintiffs to Provide Complete Responses to
Defendants’ Requests for Production of Documents and Second Set of
Interrogatories.
Federal Rule of Civil Procedure 26 provides that a party may obtain discovery of “any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
Upon a showing of good cause, a court may order discovery of “any matter relevant to the
subject matter involved in the action.” Id. Relevant information “need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.” Id. The Court, however, must limit discovery when (1) “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained from some other source that is more
convenient, less burdensome, or less expensive”; (2) “the party seeking discovery has had ample
opportunity to obtain the information”; or (3) “the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(2)(C).
Further, the Federal Rules of Civil Procedure specifically provide an avenue for a party to
pose questions to a party by way of interrogatory. Fed. R. Civ. P. 33(a)(2) (“An interrogatory
may relate to any matter that may be inquired into under Rule 26(b).”). Additionally, a party
may request the opposing party to produce documents or items within the scope of discovery and
in another party’s possession or control. Fed. R. Civ. P. 34(a)(1) (“[a]ny party may serve on any
other party a request . . . to produce and permit the requesting party or its representative to
inspect, copy, test, or sample the following items in the responding party’s possession, custody,
or control: (A) any designated documents or electronically stored information . . . .”) When a
party fails to answer an interrogatory or fails to produce a requested document or item, the Court
may order that party to respond. Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). Furthermore, Federal Rule

of Civil Procedure 37(a)(4) states, “[f]or the purposes of this subdivision (a), an evasive or
incomplete designation, answer, or response must be treated as a failure to disclose, answer, or
respond.”
In the case at hand, Defendants acknowledge that any deficiencies in Plaintiffs’
Responses to Defendants’ Requests for Production of Documents have been resolved by
Plaintiffs’ recent representations that they do not have any responsive documents. Likewise,
Defendants have now received Plaintiffs’ Responses to Defendants’ Second Set of
Interrogatories, which Plaintiffs attached to their Response to the instant Motion. Accordingly,
the portions of Defendants’ Motion seeking responses to these discovery requests are now moot.
However, Plaintiffs have not verified their interrogatory responses. (Doc. 32, pp. 7–8.)
Federal Rule of Civil Procedure 33(b)(3) requires that parties answer each interrogatory “fully in
writing under oath.” Fed. R. Civ. P. 33(b)(3). Accordingly, the Court GRANTS that portion of
Defendants’ Motion that requests that Plaintiffs verify their interrogatory responses. Plaintiffs
are ORDERED to supplement all interrogatory responses in this matter with verifications and to
serve those supplemental responses on Defendants’ counsel on or before September 15, 2015. 2
II.

Defendants’ Request for Expenses and Attorney’s Fees
In addition to authorizing the Court to compel a party to respond to discovery requests,

Rule 37 also authorizes the award of expenses and attorney’s fees to a party that successfully
brings a motion to compel. Specifically, the Rule states:
If the motion is granted—or if the disclosure or requested discovery is provided
after the motion was filed—the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees. But the court
2

Because Plaintiffs’ Responses to Defendants’ First Set of Interrogatories have not been attached to any
pleadings, the Court is unaware if Plaintiffs verified those Responses. To the extent Plaintiffs did not
verify those Responses, they must do so on or before the September 15, 2015, deadline.

must not order this payment if: (i) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery without court action; (ii) the
opposing party’s nondisclosure, response, or objection was substantially justified;
or (iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A). “A reading of the Rule leads to the inescapable conclusion that the
award of expenses is mandatory against a party whose conduct necessitated a motion to compel
discovery, and/or against the attorney who advised such conduct, unless the court finds that the
opposition to the motion was substantially justified or that other circumstances make an award of
expenses unjust.” Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. 1981)
(party opposing motion to compel liable for moving party’s reasonable expenses and attorney’s
fees regardless of whether party opposing motion acted in bad faith).
In the case at hand, there can be no dispute that Plaintiffs’ Responses to Defendants’
Interrogatories are incomplete as they are not verified.
justification for their lack of verification.

Plaintiffs have not provided any

Moreover, Plaintiffs’ Responses to Defendants’

Requests for Production of Documents were also incomplete and evasive as they made no
indication that Plaintiffs did not possess any documents responsive to Defendants’ Requests. See
Fed. R. Civ. P. 37(a)(4) (“[f]or the purposes of this subdivision (a), an evasive or incomplete
designation, answer, or response must be treated as a failure to disclose, answer, or respond.”);
Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006) (granting motion to compel where
“plaintiff did not expressly indicate when there were no documents responsive to a particular
request, or whether a response was partial or complete. Thus, Defendant was uncertain whether
or not Plaintiff had submitted all the documents that existed. Even if there are no documents
responsive to a request for production, the requesting party is entitled to a response.”). To the
contrary, Plaintiffs’ responses indicated that Plaintiffs possessed responsive documents by
stating that Plaintiffs did not object to producing many of the requested items. (See Doc. 29-4,

pp. 5–6.)

Furthermore, Plaintiffs’ counsel was given the opportunity to correct this

misimpression and state that Plaintiffs did not have responsive documents at the June 15, 2015,
hearing with the Court, during the July 13, 2015, telephone call with Defendants’ counsel, in
response to Plaintiffs’ counsel’s July 21, 2015, e-mail, and during the July 24, 2015, telephone
call between counsel. Unfortunately, Plaintiffs’ counsel did not state that his clients did not have
any responsive documents until he filed the Response to the Motion for Sanctions, well after the
Motion for Sanctions was filed. See Fed. R. Civ. P. 37(a)(5)(A) (providing for attorney’s fee
award “if the disclosure or requested discovery is provided after the motion was filed.”). 3
Additionally, the Court notes a troubling pattern of discovery production by Plaintiffs in
this case. The parties agreed that they were obligated to provide initial disclosures by February
5, 2015. (Doc. 10, p. 2); see also Fed. R. Civ. P. 26(a)(1)(C)(“A party must make the initial
disclosures at or within 14 days after the parties’ Rule 26(f) conference . . . .”). Having not
received this basic form of discovery, Defendants’ counsel wrote Plaintiffs’ counsel a letter on
April 17, 2015, requesting the initial disclosures. (Doc. 35-1.) However, Plaintiffs’ Rule 26(a)
disclosures were not signed until May 1, 2015. (Doc. 35-2, p. 4.) Thus, even if Plaintiffs’ initial
disclosures were provided to Defendants’ counsel on the date they were singed, they were late by
eighty-five days. 4 Additionally, according to Defendants, they did not receive any response to
their April 17, 2015, letter to Plaintiffs’ counsel and did not receive the Plaintiffs’ initial

3

Plaintiffs compounded this delay by filing an untimely Response to the Motion for Sanctions twenty
days after the Motion was filed. See L.R. 7.5 (“Unless these rules or the assigned Judge prescribes
otherwise, each party opposing a motion shall serve and file a response within fourteen (14) days of
service of the motion . . . .”).
4

This delay is particularly egregious when considering that the discovery deadline in this case was May
22, 2015. (Doc. 16.) For Plaintiffs to wait until three weeks before the discovery deadline to complete
this initial measure of discovery is simply inexcusable.

disclosures until June 18, 2015, three days after the Court’s hearing, and forty-nine days after
Plaintiffs’ counsel signed them. 5
Such discrepancies between the date that the Plaintiffs’ discovery responses were signed
by Plaintiffs’ counsel and the date that Defendants’ counsel states he received the responses
permeate this case. Plaintiffs’ counsel signed Plaintiffs’ Response to Defendants’ Requests for
Production and Plaintiffs’ Response to Defendants’ First Set of Interrogatories on May 15, 2015,
(doc. 29-4, p. 7), but Defendants’ counsel stated that he did not receive either of these responses
until June 18, 2015, (doc. 35, pp. 3–5.). Similarly, though Plaintiffs’ counsel signed Plaintiffs’
Response to Defendants’ Second Set of Interrogatories on June 20, 2015, (doc. 32, p. 8.),
Defendants’ counsel states that he did not receive these responses until August 10, 2015, when
Plaintiffs attached them to their Response to the instant Motion. (Doc. 35, p. 7.)
There could be an explanation for these discrepancies, and, on the limited record at hand,
the Court will not find that either counsel has misrepresented when Plaintiffs’ disclosures and
discovery responses were mailed or when they were received. However, the Court does find it
specious that Plaintiffs’ discovery materials would be lost in the mail on three separate
occasions. Moreover, regardless of the reason behind these discrepancies, it does not appear
Plaintiffs’ counsel took reasonable measures to remedy them. For example, Plaintiffs’ counsel
was aware that Defendants’ counsel did not have a copy of Plaintiffs’ Responses to Defendants’
Second Set of Interrogatories as of the July 13, 2015, phone call between counsel. If those
Interrogatory Responses had already been drafted, Plaintiffs’ counsel should have simply
forwarded a copy to Defendants’ counsel on the date of the call or, at the very latest, when the

5

June 18, 2015, was also a day after the deadline of June 17, 2015, by which the Court ordered
Plaintiffs’ counsel to provide the disclosures to Defendants’ counsel at the June 15, 2015, hearing. At
that hearing, Plaintiffs’ counsel represented that he would provide the disclosures to Defendants’ counsel
on the same date as the hearing.

instant Motion was filed on July 22, 2015. Instead, Plaintiffs waited twenty-nine days after the
phone call and twenty days after the Motion for Sanctions was filed to provide the Interrogatory
Responses by attaching them to their Response to the Motion for Sanctions. 6
In their Response to the Motion, Plaintiffs’ counsel took issue with Defendants’ counsel’s
efforts to resolve these discovery disputes prior to filing the Motion for Sanctions. In reply to
these arguments, Defendants pointed out that their counsel discussed the discovery requests with
Plaintiffs’ counsel during the hearing with the Court in June and during a phone call with
Plaintiffs’ counsel nine days before filing the instant Motion. Defendants also assert that their
counsel again reached out to Plaintiffs’ counsel via e-mail on the morning on July 21, 2015,
before filing the Motion for Sanctions on the evening of July 22, 2015. Plaintiffs’ counsel does
not dispute that Defendants’ counsel sent that e-mail, and Plaintiffs’ counsel provides no reason
why he did not respond. See Mitchell v. Felker, No. CV 08-1196RAJ, 2010 WL 3835765, at *3
(E.D. Cal. Sept. 29, 2010) (counsel met obligation to attempt to meet and confer by leaving voice
message for opposing counsel to which opposing counsel did not respond). While ordinarily the
Court would expect counsel to wait more than two business days after a message before filing a
discovery Motion, in this case the Motions deadline was July 22, 2015, and Defendants waited
until the end of that day before filing their Motion for Sanctions. Defendants’ counsel mentioned
the imminent motions deadline in his July 21, 2015, e-mail to Plaintiffs’ counsel. Moreover,
Defendants’ counsel gave Plaintiffs’ counsel an opportunity to resolve the Motion in the July 24,
2015, phone call. In light of these facts, the Court finds that Defendants’ counsel met his

6

As with the Response to Defendants’ Requests for Production of Documents, Plaintiffs’ counsel
compounded this delay by not providing the discovery after counsel’s July 24, 2015, phone call and by
filing an untimely Response to the Motion for Sanctions.

obligation to confer or attempt to confer in good faith to resolve the discovery disputes without
Court action. 7 Fed. R. Civ. P. 37(a).
The Court has found that Plaintiffs, without substantial justification, did not provide
complete responses to Defendants’ Requests for Production until after Defendants moved to
compel and that Plaintiffs, again without substantial justification, have still failed to verify their
interrogatory responses. Additionally, Defendants filed their Motion for Sanctions after a good
faith effort to resolve these disputes. On this record, the Court would ordinarily be obligated to
award Defendants the reasonable expenses, including attorney’s fees, for bringing their Motion
for Sanctions.

Fed. R. Civ. P. 37(a)(5)(A).

However, Defendants have not provided any

evidence of the amount of expenses they incurred. See Monaghan v. SZS 33 Associates, L.P.,
154 F.R.D. 78, 84 (S.D.N.Y. 1994) (“As a general rule, a party seeking an award ‘should submit
evidence supporting the hours worked and rates claimed. Where documentation of hours is
inadequate, the district court may reduce the awards accordingly.’” (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983))). Thus, the Court will only award Defendants the minimal
amount of $100.00. See In re O’Bannon, 49 B.R. 763, 764 (Bankr. M.D. La. 1985) (awarding
discovery sanctions pursuant to Rule 37, but ruling that “there has been no evidence, allegation,
or even hint at what is the proper amount to award. Therefore, the order will be a minimal sum
for dictating and filing a motion: $50.00.”). Additionally, Plaintiffs’ failure to provide complete
and timely responses to Defendants’ discovery requests appears to be the fault of their counsel
rather than Plaintiffs individually. Accordingly, the Court will require that Plaintiffs’ counsel
pay the award to Defendants. See Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162 (11th
7

Defendants’ efforts to resolve the discovery disputes did not specifically mention the verification of
Plaintiffs’ Responses to Defendants’ Second Set of Interrogatories. However, Defendants’ counsel could
not have known the Responses were not verified, because he had not yet received them. Furthermore,
Defendants requested that Plaintiffs respond to the interrogatories, and it is a basic tenet of discovery that
interrogatory responses must be verified.

Cir. 1993) (Rule 37 does not require court to make specific finding that attorney instigated
discovery misconduct before imposing sanctions upon attorney; rather, the rule identifies
attorneys advising or overseeing discovery as possible subjects of sanctions along with clients
and vests trial court with broad discretion to apportion fault between them).
CONCLUSION
Plaintiffs have not verified their Interrogatory Responses and waited until after
Defendants’ Motion was filed to state that they did not possess documents responsive to
Defendants’ Requests for Production. Defendants attempted, in good faith, to have Plaintiffs
remedy these discovery deficiencies prior to the motions deadline, but Plaintiffs failed to do so.
Moreover, these deficiencies follow a pattern of discovery delay by Plaintiffs in this case.
Accordingly, Defendants’ Motion for Sanctions is GRANTED. Plaintiffs shall provide verified
responses to Defendants’ Interrogatories on or before September 15, 2015.

Furthermore,

Plaintiffs’ counsel shall pay the sum of $100.00 to Defendants on or before September 15, 2015.
SO ORDERED, this 10th day of September, 2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA