Venator v. Interstate Resources, Inc. et al

Filing 137

ORDER granting 59 Motion to Compel; denying 61 Motion to Strike ; denying 61 Motion for Default Judgment; granting 61 Motion for Sanctions; denying 61 Motion for Discovery. The Court GRANTS plaintiffs second motion to compel. Doc. 59. T he parties must confer regarding a proposed protective order, taking into account the Courts instructions outlined above, and file that proposal within ten days of the date this Order is served. Interstate must remit $500 to the Clerk of this Court and $500 to plaintiff within fourteen days of the date this Order is served. Signed by Magistrate Judge G. R. Smith on 4/15/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DENISE VENATOR, as surviving
spouse of RICKY LEE VENATOR,
and as the Administratrix of the
Estate of RICKY LEE VENATOR,
Plaintiff,
Case No. CV415-086
v.
INTERSTATE RESOURCES, INC.,
INTERSTATE PAPER, LLC,
and MICHAEL JOSEPH WINGATE,
Defendants.

ORDER
In this wrongful death action, plaintiff Denise Venator sues
defendants Interstate Resources, Inc., Interstate Paper, LLC (Interstate),
and Michael Joseph Wingate for the wrongful death of her husband, who
perished in an industrial accident due to their alleged negligence. Doc.
1 . 1 She moves to compel from Interstate supervisor evaluations of

1

Plaintiff asserts negligence and negligence per se claims against all defendants, and
negligent hiring and retention, training, and supervision claims, premises liability,
and punitive damages claims against the Interstate defendants. See doc. 9-1.

Ronnie Swindell, defendant Wingate’s supervisor, who generated a
report about the accident. 2 Doc. 59.
She also moves to strike defendants’ answer, enter default
judgment in her favor, levy attorney’s fees and costs as sanctions, and
reopen discovery to conduct a forensic evaluation of defendants’ IT
system -- all because of alleged nefarious discovery conduct surrounding
defendants’ document production. Doc. 61. Defendants oppose both
motions, arguing that (1) plaintiff failed to negotiate in good faith before
moving to compel (doc. 112 at 3); (2) Swindell’s evaluation is confidential
and irrelevant ( id. at 8-12); and (3) no sanctions are appropriate because
defendants supplemented their inadvertent non-disclosures as
contemplated by the Fed. R. Civ. P. 26.

I. BACKGROUND
As the Court previously found:
On November 27, 2013, Ricky Venator, a truck driver employed by
a non-party, arrived at Interstate Paper's warehouse in Riceboro,
Georgia. See doc. 33-1 at 1; doc. 9-1 at 7. He subsequently asked
defendant and Interstate Paper employee Michael Wingate for
assistance in removing a defective mud flap from his truck. Doc. 332

Swindell, an Interstate Paper employee, supervised defendant Michael Wingate
before and at the time the accident underlying this action occurred. See doc. 112 at 2.
As discussed below and in a previous Order (doc. 53), he also filled out a
“Supervisor’s Report of Injury/Illness” that documented the accident.

2 at 2. Wingate obliged, using a fork lift to aid removal. Doc. 33-1 at
1. The parties hotly dispute what precisely happened next, but one
thing is clear -- Venator died after being pinned between the fork
lift and his truck's trailer.

Venator v. Interstate Resources, Inc. , 2015 WL 6555438 at * 1 (S.D. Ga.
Oct. 29, 2015).
After defendants removed this case from state court, discovery
eventually commenced but quickly grew contentious. Plaintiff moved to
compel production of a “Supervisor’s Report of Injury/Illness” authored
by Swindell, and all emails between other Interstate employees and the
Occupational Health and Safety Administration (OSHA). Doc. 33.
Defendants opposed but tendered what they claimed was the sole report
and all OSHA-related emails to the Court for an in camera inspection.
After reviewing the documents, the Court compelled their production
and allowed plaintiff to re-depose Jimmie McGowan (Interstate Paper’s
former HR head), Ronnie Moore (first aid and safety coordinator at
Interstate Paper), and Michael Hardy (Swindell’s supervisor) concerning
the report and emails. Doc. 53.
Defendants complied with that Order and produced the in camerainspected documents to plaintiff on November 5, 2015. Doc. 59-3. The

3

parties then scheduled the three depositions for December 17, 2015. Doc.
59-8.
Fourteen days before those depositions, McGowan turned over to
the defense 55 pages of additional emails that he allegedly located on his
work computer “as part of [his] retirement clean out.” Doc. 117-6 at 3.
Counsel reviewed the documents and discovered that they contained
unproduced, responsive emails between Interstate Paper employees and
OSHA regarding Wingate’s forklift training. Doc. 117-2 at 1.
Defendants produced the emails to plaintiff the next day, during a
deposition. Id. ; doc. 61-1 at 15.
The production surprises continued on December 16, 2015 -- the
day before Hardy’s deposition -- when defendants turned over a new copy
of the supervisor’s report. Doc. 117-1 at 2. Although largely the same,
the versions produced on November 5, 2015 (Report One) and December
16, 2015 (Report Two) differ in key respects. Report One (doc. 117-1)
was written by Hardy, 3 but signed by Swindell (not Hardy), and dated

3

The Court and plaintiff only learned of Hardy’s authorship well after Report One
was reviewed in camera and produced to plaintiff. Based on defendants’
representations at the time ( see, e.g. , doc. 99 at 110 (Swindell testifying during his
first deposition that he prepared the supervisor’s report on November 27, 2013)),
both the Court and plaintiff thought that Swindell drafted and signed the report.

2

November 27, 2013. 4 Doc. 103 at 51. By contrast, Report Two is undated
and was written entirely by Swindell (he also signed it). Doc. 117-1 at 4.
Importantly, Hardy drafted Report One after Swindell penned Report
Two, ostensibly because of Swindell’s poor penmanship. 5 See doc. 103 at
10 (Q: “[W]hy did you rewrite [Report Two]? A. The main purpose was
legibility.”).
It would not be unreasonable for one to conclude that the Report
discrepancies stem from a desire to “shape” the facts of the accident and
its aftermath. Report One states that “use of the clamp truck to remove
a mud flap” was an “action[] by [Wingate that] may have contributed” to
Venator’s death (doc. 117-3 at 8), while Report Two reads “ improper use
of clamp truck to pull mud flap off.” Doc. 117-1 at 3 (emphasis added).
Under Report One’s “unsafe acts” column, which contains 13 options to
check (and instructs the report’s author to check only one), Hardy
checked “other” and listed “unintended use of clamp truck.” Doc. 117-3

4

Report One was not written or signed on November 27, 2013, the day Ricky
Venator died. Hardy testified, after defendants finally produced Report Two, that he
drafted Report One the week following Venator’s fatal accident. Doc. 103 at 7.
5

The Court had no trouble deciphering Swindell’s handwriting which, though not
that of an elementary school penmanship teacher, came nowhere close to illegible.
Cf. Hurt v. Zimmerman , CV415-260, doc. 1 (S.D. Ga. Sept. 25, 2015) (pro se
handwritten, largely illegible, complaint).
5

at 10. Swindell, in Report Two, listed “operating equipment improperly ”
under “other,” and also checked the “taking an unsafe position or
posture” box despite the one-box-only instruction. Doc. 117-1. Finally,
under the “additional comments” section, the last sentence of Report
One claims that “[a] safety meeting topic on safe and proper use of PIT
equipment is planned,” doc. 117-3 at 11, while Report Two omits that
sentence. Doc. 117-1 at 6. 6
Armed with Report Two (authored and signed by Swindell),
plaintiff re-deposed Hardy (the drafter, but not signer, of Report One).
Questioning about the various discrepancies between Report One and
Two eventually led plaintiff’s counsel to ask whether Hardy “g[a]ve Mr.
Swindell . . . yearly evaluations.” Doc. 103 at 23. He said “yes,” but
further questioning about evaluations resulted in Hardy stonewalling. 7

See, e.g. , id.
That exchange precipitated a December 21, 2015 document request
for copies “of any and all evaluations of Ronnie Swindell from November
6

Reports One and Two contain other, minor and irrelevant differences.

7

When asked whether he “generally g[a]ve [Swindell] good evaluations,” Hardy
stated that he didn’t “think that’s pertinent.” Doc. 103 at 23. Asked if he gave
Swindell good evaluations, Hardy refused “to comment on that” because it was
“private information that’s private to the employee and company.” Id. at 23-24.

[;

27, 2012, until the present.” Doc. 112-1 at 3. Defendants objected on a
variety of grounds, revealed they were withholding one responsive
document, but expressed willingness “to produce

th[e] document

pursuant to a confidentiality agreement.” 8 Doc. 112-1 at 4-5.
Plaintiff refused to sign the agreement because of the witness
limitation and defendants refused to compromise on its terms. Thus the
current motion to compel. The failure to disclose Report Two until one
day before Hardy’s deposition, along with the supplemental OSHA email
production, spurred plaintiff’s motion for sanctions.

II. ANALYSIS
A. Motion to Compel
Defendants resist Venator’s compel motion by first arguing that
she failed to negotiate in good faith prior to filing. 9 Doc. 112 at 3. That
8

The proposed agreement, among other provisions, limits use of the document to
“litigating or attempting to settle the present action,” and requires that only the
parties and witnesses Hardy, McGowan, and Al Cantrell (Interstate’s general
manager) be allowed to see it. Doc. 59-3 at 41.
9

Although not the moving party, defendants bear the burden of “showing why the
requested discovery should not be permitted,” Henderson v. Holiday CVS, L.L.C. , 269
F.R.D. 682, 686 (S.D. Fla. 2010), so long as plaintiff first shows that defendants’
“answers were incomplete.” Equal Rights Center v. Post Properties, Inc., 246 F.R.D.
29, 32 (D.D.C. 2007). See also Morrison v. Philadelphia Housing Authority , 203
F.R.D. 195, 196 (E.D. Pa. 2001) (“A party moving to compel bears the initial burden
of showing the relevance of the requested information. See Northern v. City of
Philadelphia, 2000 WL 355526, *2 (E.D. Pa. Apr.4, 2000); Momah v. Albert Einstein
7

alone, they say, warrants the Court denying her motion.

Id. They also

contend that Swindell’s evaluations are, in any case, not discoverable
because they contain private information about a non-party and are
irrelevant. Id. at 8.
Under Fed. R. Civ. P. 37(a)(1), says plaintiff, parties need not
“negotiate” in good faith; they must “confer,” which, she contends, the
parties have done. Doc. 132 at 3. Because (1) personal, confidential
information enjoys no absolute privilege from disclosure, and (2)
Swindell’s evaluation -- whether poor or favorable -- is relevant to
plaintiff’s negligent training and supervision claims, defendants must, in
plaintiff’s view, disclose the evaluation. 10

1. Good Faith
Before moving to compel discovery, a party must “in good faith
confer[] or attempt[] to confer with the . . . party failing to make
disclosure.” Fed. R. Civ. P. 37(a)(1); see also S.D. Ga. L.R. 26.5
(reminding counsel of the good faith conference requirement). “That

Med. Ctr. , 164 F.R.D. 412, 417 (E.D. Pa. 1996). The burden then shifts to the party
resisting discovery to justify withholding it.”).
10

Plaintiff has no issue with the evaluation receiving some measure of protection -just not the “onerous [and] improperly severe” measures that defendants’ proposed
confidentiality agreement includes.
8

rule is enforced,” Hernandez v. Hendrix Produce, Inc. , 2014 WL 953503
at * 1 (S.D. Ga. Mar. 10, 2014), and the conference must be meaningful.

Hernandez v. Hendrix Produce, Inc. , 297 F.R.D. 538, 540 (S.D. Ga. 2014);
State Farm Mutual Automobile Insurance Co. v. Howard , 296 F.R.D. 692,
697 (S.D. Ga. 2013).
“Neither face-to-face nor telephone contact is necessarily essential
to the “good faith” certification requirement in every case. Sometimes
letters, emails, or faxes will suffice.” Scruggs v. International Paper Co.,
2012 WL 1899405 at * 2 (S.D. Ga. May 24, 2012). Sometimes, however,
“more is required than a mere back and forth salvo of papers.” Id.
That something more happened here. Counsel for both parties
spoke by telephone on January 22, 2016, regarding the Swindell
evaluation and defendants’ desire to produce it pursuant to a protective
order. See doc. 112-8; doc. 59-3 at 47. They then communicated via
email about the same issues. Doc. 112-8. Plaintiff agreed to consent to a
protective order, doc. 59-3 at 47, but found defendants’ proposed terms
far too limiting. Id. No final agreement could be reached.
Defendants contend that the phone call and emails were “merely
Plaintiff’s counsel avowing they would not agree to a confidentiality

01

agreement under any terms” and should not be considered conferring in
good faith. Doc. 112 at 5. Whether that’s “conferring” or not, plaintiff’s
counsel never disavowed all confidentiality agreements. To the contrary,
Howard Spiva stated: “We will agree not to share the document publicly,
but we are not agreeable to any limitations on the use of this document
at mediation or trial.” Doc. 59-3 at 47 (emphasis added). To characterize
that as refusing to agree to a confidentiality agreement “under any
terms” borders on outright misrepresentation.
Regardless, counsel for the parties spoke by telephone and
exchanged multiple emails about the Swindell evaluation document
request. They never could agree on terms of production, but
disagreement does not preclude a finding of good faith. Quite the
opposite -- the Court finds that plaintiff’s counsel did confer in good faith
prior to moving to compel.

2. Discoverability of Swindell’s Evaluation
Defendants also contend that the withheld evaluation contains
“private and personal information” that should be shielded from
disclosure. Doc. 112 at 8. Although she acknowledges that personal
information deserves heightened scrutiny as a general proposition,

10

Venator asserts that no absolute privilege protects it from disclosure
when what’s sought is relevant and not obtainable elsewhere. Doc. 132
at 8-10. Because that’s the case here, she says, the Court should compel
production. Id. at 14. She “is agreeable to protecting the evaluation . . .
from public disclosure,” but will not consent to restricting use of the
evaluation in this litigation (in particular, she won’t consent to limiting
its use to three witnesses). Id.
As both parties tacitly acknowledge, “[i]t is well settled that there
is no absolute privilege for . . . confidential information.” 11 8A WRIGHT
AND

M ILLER , F ED . P RAC . & P ROC . § 2043 (3d ed. 2010). Instead, “if the

information sought is shown to be relevant and necessary, proper
safeguards will attend disclosure.” Id. (footnote added); see also Fed. R.
Civ. P. 26(c)(1) (“[F]or good cause,” courts may “require[] that . . .
confidential . . . information . . . be revealed only in a specified way,” or
otherwise “limit[] the scope of disclosure”).
The Swindell evaluation, drafted by Hardy, consists of a date
(January 27, 2014 -- exactly two months after Ricky Venator’s death),
Plaintiff openly argues that sensitive information enjoys no absolute protections.
See, e.g. , doc. 132 8-9. Defendants implicitly admitted as much by proposing to
disclose the document (albeit pursuant to a confidentiality agreement) prior to the
present motion’s filing. See doc. 112-1 at 5.
11

11

“to,” “from,” and “subject” lines, and six names, each with an assigned
number (ranging from 1-3, with 1 being “solid above average,” and 3
being “below average). 12 It does not elaborate on the numerical ratings.
Regardless, any evaluation of Swindell -- who trained and supervised
Wingate, the Interstate employee driving the forklift that killed
plaintiff’s husband -- is relevant.
“Evidence is relevant if it has any tendency to make the existence
of any fact or consequence more or less probable than it would be
without the evidence.” Steel Erectors, Inc. v. AIM Steel Int'l, Inc. , 312
F.R.D. 673, 676 (S.D. Ga. 2016). Furthermore, claims and defenses
define relevancy’s outer bounds for a given case.

See id. (citing

Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1368 (11th Cir.
1997)); id. at 676 n. 4 (“It remains true today both that claims and
defenses provide discovery's outer bounds and that the court is inclined
to err in favor of discovery rather than against it.”).
12

Defendants submitted a copy of the evaluation for in camera inspection.
Consistent with their assertions to plaintiff and the Court that only one responsive
evaluation exists, they delivered only the one document. The Court, for now, accepts
those evidentially supported assertions at face value. See doc. 112-5 at 3 (Cantrell
affidavit declaring that, “to his knowledge,” only one evaluation for Swindell exists
from November 27, 2012 to the present). But if other evaluations later mysteriously
appear -- as happened with the Supervisor’s Report addressed by plaintiff’s first
motion to compel -- the thin Rule 37 ice keeping defendants and defense counsel
afloat will shatter ( see Part II-B, infra, addressing plaintiff’s motion for sanctions).
12

Plaintiff asserts, among others, negligent training and supervision
claims. See doc. 9-1 at 10. An evaluation of Swindell by his supervisor
(Hardy), whether done for purposes of bonuses or more generally,
certainly “has a[] tendency to make” the existence of training evidence
more or less likely. It may, for example, reveal that Swindell received
poor marks because he inadequately trained subordinates (particularly
since it is dated exactly two months after the incident at issue), or in
some way was at least in part responsible for Wingate’s alleged
negligence. Or, it might reveal the opposite. Either way, the evaluation
is demonstrably relevant. 13
Hardy’s deposition testimony, despite defendants’ contrary
contentions ( see doc. 112 at 10), does nothing to undermine that
conclusion. If the evaluation reflects a poor review, it could be used to
impeach Hardy (he said he gave Swindell good marks on the postincident evaluation, see doc. 103 at 26), or to show that Hardy felt
Swindell bore some responsibility for the Venator accident. If it’s
13

Defendants confusingly argue that the evaluation is irrelevant and thus
undiscoverable, see doc. 112 at 11 (“Hardy’s testimony shows the evaluation is
irrelevant”) but also that its confidential nature warrants some protection if disclosed
to Venator (hence, that it implicitly is relevant). Id. at 12-13 (arguing in favor of a
“confidentiality stipulation and order”). To avoid similar confusion, the Court
explicitly finds the evaluation relevant.

13

consistent with Hardy’s testimony, then it could, as plaintiff recognizes,
be evidence of a reward given to Swindell for signing the Supervisor’s
Report Hardy drafted. 14 Regardless of what the evaluation actually
evidences (something that cannot be known absent its use in examining
witnesses), it’s relevant.
Because the Swindell evaluation is available nowhere else, the
Court GRANTS plaintiff’s motion to compel. Doc. 59. Defendants must
produce both the Swindell evaluation submitted for in camera review,

and any other document that reflects evaluations of Swindell by his
supervisors (whether Hardy or another Interstate employee), regardless
of what label the document bears ( i.e. , it need not be called an
“evaluation” to fall within this Order’s ambit). Defendants also must
produce any notes of verbal evaluations of Swindell, or any other
documentation of Swindell evaluations conducted between November 27,

14

Defendants also suggest that the evaluation lacks relevance because it exists solely
to aid Al Cantrell (Interstate’s general manager) in determining bonuses. See doc.
112 at 9. Even taking that bonus purpose as true, the factors that informed
Swindell’s rating remain the same. What purpose the evaluation ultimately served
has no effect on the relevance of that underlying information.

14

2012 and the present. Failure to comply fully with this Order will result
in sanctions. 15
Nevertheless, plaintiff seeks a relevant non-party employee
evaluation that contains sensitive information whose unrestricted
disclosure implicates privacy rights.

See Moss v. GEICO Indem. Co. ,

2012 WL 682450 at * 3 (M.D. Fla. Mar. 2, 2012) (“Plaintiff's request for
personnel files raises concerns about the privacy rights of the non-party
employees whose information it seeks to discover.”). In particular, the
Swindell evaluation includes information on six Interstate employees
who apparently have no connection to this litigation whatsoever.
Swindell himself is a non-party too. Though intimately connected to
relevant events, he enjoys a greater privacy expectation than plaintiff or
defendants. Still, as discussed above, those considerations do not

15

Defendants and their attorneys should not make the mistake of reading this Order
(or legitimate discovery requests for demonstrably relevant documents) narrowly to
avoid disclosing documents that fall within its scope. That would constitute an
intentional violation of a Court order and expose defendants to Rule 37(b)(2)’s most
severe sanctions.
Moving forward, in this case and others, counsel should more carefully evaluate a
given document’s discoverability. Although the defense resistance that generated
these first two motions to compel stemmed from genuine disputes, a pattern of
miscalculating on the scope of discovery is beginning to emerge. A third compel
motion would cement that pattern and justify additional sanctions.
15

preclude disclosure; rather, they justify safeguards to protect those
privacy interests.
One protection is immediately apparent: the evaluation must not
be publicly disclosed. Revealing its contents outside the context of this
litigation furthers no legitimate end while undermining substantial
privacy concerns. The document may be revealed to the parties, their
attorneys and agents, and all witnesses with pertinent knowledge of
Interstate evaluations, including Swindell, but to no one else. If either
party attaches the evaluation to a filing, it must be filed separately under
seal, and the Court grants permission to do so under Local Rule 79.7. 16
That said, plaintiff may use the evaluation for any purpose within
this litigation. Limiting its disclosure to Cantrell, Hardy, and McGowan
as defendants propose ( see doc. 112-7 at 3) unfairly restricts how plaintiff
may use the evaluation without providing a corresponding benefit to
privacy concerns. Eliminating public disclosure protects the six nonparty employees with no involvement in this case (and Swindell), while
still allowing plaintiff access to relevant information about Swindell.

16

The public has no interest in Swindell’s evaluation that exceeds his privacy
expectations. And, at least in this case, the public also has no interest in defendants’
bonus policies, only in why Swindell received the evaluation given.
16

While the Court acknowledges that Swindell may now be exposed to how
defendants evaluated his performance, plaintiff’s right to discovery
outweighs defendants’ desire to keep from its employees how it grades
them for bonuses.

See Steel Erectors , 312 F.R.D. at 676 n. 4 (“[T]he

court is inclined to err in favor of discovery rather than against it.”).
With those instructions in mind, the parties must confer regarding
the precise language of a protective order and submit a proposal within
10 days of the date this Order is served. Once the Court enters that
proposed protective order (it must comply with the above restrictions),
defendants will have three days to produce the Swindell evaluation to
plaintiff. Any documents, notes, or memoranda (to the extent they exist)
that reflect supervisory evaluations (whether verbal or written) of
Swindell other than the one page document produced to the Court must
be produced to plaintiff within ten days of the date the Court enters the
proposed protective order.

3. Rule 37 Sanctions
Both parties ask the Court to award expenses associated with
plaintiff’s motion to compel (including attorney’s fees) should they
prevail. Doc. 61-1 at 25 (plaintiff’s sanctions request); doc. 112 at 14

17

(defendants’). Defendants did not prevail (the Court granted plaintiff’s
motion to compel), so only plaintiff’s request warrants scrutiny.
When the Court grants a motion to compel, Fed. R. Civ. P.
37(a)(5)(A) mandates that the “party . . . whose conduct necessitated the
motion, the party or attorney advising that conduct, or both . . . pay the
movant’s reasonable expenses incurred in making the motion, including
attorney’s fees.” Only if (1) “the movant filed the motion before
attempting in good faith to obtain the . . . discovery without court
action;” (2) the failure to respond was justified; or (3) “other
circumstances make an award of expenses unjust, may a court decline to
award expenses to a prevailing party. Id. ; Boyd v. Experian Information

Solutions, Inc. , 2016 WL 1239267 at * 4 (S.D. Ga. Mar. 29, 2016) (“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. International Board of Boilermakers , 649
F.2d 1013, 1019 (5th Cir. 1981) (party opposing motion to compel liable

18

for moving party's reasonable expenses and attorney's fees regardless of
whether party opposing motion acted in bad faith).”).
Exceptions one and two do not apply here. 17

“Other

circumstances,” however, do exist. Defendants’ resistance to plaintiffs’
motion rests on protecting the legitimate privacy interests of its
employees and its formula for awarding bonuses. See doc. 112. They do
not refuse production based on specious concerns. On the contrary, they
advance arguments that Fed. R. Civ. P. 26(c)(1)(G) explicitly recognizes
as justification for a protective order. And, they proposed such an order
prior to this dispute finding its way before the Court.
Although the parties could not agree on the terms of production
without Court assistance, awarding plaintiff her expenses would not
incentivize discovery cooperation moving forward. Instead, it would
telegraph that substantial justification 18 for resisting production provides
no safe harbor and is treated the same as wanton obstructionism. That

17

As discussed above, the Court finds that the parties conferred in good faith prior
to plaintiff filing her motion to compel. Since defendants responded, only the “other
circumstances” exception possibly applies.
18

“Substantial justification” exists “where the party's nondisclosure resulted from
some reasonable and genuine dispute concerning the discovery request.” King v.
Dillon Transportation, Inc., 2012 WL 592191 at * 2 (S.D. Ga. Feb. 22, 2012).
19

message cannot be sent, so the Court declines to award plaintiff her
expenses or fees.

B. Motion for Sanctions
In addition to sanctions for refusing to produce Swindell’s
evaluation, plaintiff also asks for a bevy of punishments for alleged
discovery violations related to defendants’ belated production of Report
Two and additional OSHA-related emails. Doc. 61. Defendants’ “pattern
of misconduct,” says plaintiff, “worked a fraud upon this Court” and
merits an award of expenses and fees under Fed. R. Civ. P. 26(g), and the
ultimate sanction -- striking defendants’ answers and imposing a default
judgment -- under Rule 37(b)(2). Doc. 61-1 at 4.

1. Rule 26(g)
As is the case with motions, discovery disclosures and responses
must be signed by a represented party’s attorney. Fed. R. Civ. P.
26(g)(1); Fed. R. Civ. P. 11 (motions and pleadings must be signed by
counsel). That signature “certifies that to the best of the [attorney’s]
knowledge, information, and belief formed after a reasonable inquiry,”
that, “with respect to a disclosure, it is complete and correct as of the
time it is made; and with respect to a discovery . . . response . . . it is:” (1)

20

consistent with the federal rules and existing law; (2) “not interposed for
any improper purpose;” and (3) not unreasonably or unduly burdensome
or expensive. Fed. R. Civ. P. 26(g)(1) (emphasis added). Should “a
certification violate[] th[at] rule without substantial justification, 19 the
court . . . must impose an appropriate sanction 20 on the signer, the party
on whose behalf the signer was acting, or both.” Id at (g)(3) (footnotes
added).
“The comments to subsection (g)(1) clarify that Rule 26(g) broadly
‘imposes an affirmative duty to engage in pretrial discovery in a
responsible manner that is consistent with the spirit and purposes of
Rules 26 through 37.’”
19

In re Delta/AirTran Baggage Fee Antitrust

“[S]ubstantial justification”
does not mean “justified to a high degree, but . . . justified to a degree that
could satisfy a reasonable person.” Sun River Energy, Inc. [v. Nelson ], 800
F.3d [1219,] 1227 [(10th Cir. 1015)] (quoting Pierce v. Underwood, 487 U.S.
552, 565, 108 S. Ct. 2541, 101 L.Ed.2d 490 (1988)). Cf. Grider v. Keystone
Health Plan Central, 580 F.3d 119 (3rd Cir. 2009) (suggesting that the
“substantial justification” is “satisfied if there exists a genuine dispute
concerning compliance”) (citing Tolerico v. Home Depot , 205 F.R.D. 169, 175–
76 (M.D. Pa. 2002)); Sender [v. Mann ], 225 F.R.D. [645,] 656 [(D. Col. 2004)]
(“[A] party's failure to disclose is substantially justified where the non-moving
party has a reasonable basis in law and fact, and where there exists a genuine
dispute concerning compliance”).

A PDX Pro Co. v. Dish Network Service, LLC , 311 F.R.D. 642, 656 (D. Col. 2015).
20

Such sanctions may include “reasonable expenses, including attorney’s fees,
caused by” the certification violation. Fed. R. Civ. P. 26(g)(3).
21

Litigation , 846 F. Supp. 2d 1335, 1350 (N.D. Ga. 2012) (quoting Fed. R.
Civ. P. 26(g) advisory committee’s note); Dish Network , 311 F.R.D. at
653 (“[T]he practical import of Rule 26(g) is to require vigilance by
counsel throughout the course of the proceeding.”). With respect to the
“reasonable inquiry” attorneys must make, counsel may “rely on
assertions by the client . . . as long as that reliance is appropriate under
the circumstances.” Fed. R. Civ. P. 26(g) advisory committee’s note; St.

Paul Reinsurance Co. v. Commercial Financial Corp. , 198 F.R.D. 508,
516 (N.D. Iowa 2000). “Ultimately, what is reasonable is a matter for
the court to decide on the totality of the circumstances,” but in any case
must include an “effort to assure that the client has provided all the
information and documents available to him that are responsive to the
discovery demand.” Fed. R. Civ. P. 26(g) advisory committee’s note.
Defense counsel’s certifications here encompass two distinct
inquiries, both of which must be reasonable. First, the inquiry
associated with the search of Interstate’s computer system for OSHArelated emails, and second, the inquiry into “[a]ll incident reports . . .
made as a result of the” accident that killed Ricky Venator. Doc. 61-1 at
4, 14 (citing plaintiff’s request for production of documents).

22

For e-discovery related inquiries like the OSHA email search,

Delta/Airtran is instructive. 21 There, Delta “belatedly produced relevant
documents,” discovered on backup hard drives it never knew existed
until after discovery’s close.

Delta/AirTran , 846 F. Supp. 2d at 1350.

Delta contended that its counsel “made reasonable inquiries” under Rule
26(g) because “each response was given only after Delta counsel had
engaged in several conversations with Delta's [IT] department and/or
IBM[, Delta’s IT vendor,] to verify the relevant back-up tapes Delta had
in its possession.”

Id. But counsel never confirmed with Delta’s IT

people or IBM that all hard drives had actually been searched.

Id.

Counsel provided IT a list of custodians, but failed to ensure that each
person’s hard drive was then searched. Id.
The court found “immaterial” that Delta immediately produced the
documents upon locating the hard drives. Delta/AirTran , 846 F. Supp.
2d at 1350. Delta had represented to the plaintiffs and the court that its
discovery responses were complete and that its productions included
documents for all backup drives. Id. When that turned out not to be the
21

Defendants dismiss In re Delta/Airtran because Delta failed to timely produce
60,000 pages of documents, see 846 F. Supp. 2d at 1341, while the OSHA emails and
Report Two amount to a mere 22 pages. See doc. 117 at 17. What matters in
determining an inquiry’s reasonableness, however, is defense counsel’s conduct in
each case, not the size of a production.
23

case, and when Delta failed to show that it ever confirmed with its IT
department that all drives were searched, the court found “that Delta
did not conduct a reasonable inquiry,” and provided no substantial
justification for not doing so. Id. at 1350-51.
Here, “[d]efendants and defense counsel admit they initially failed
to identify [Report Two] and produce 19 pages of [s]upplemental” OSHA
emails. Doc. 117 at 2. They don’t try to justify that failure, or describe
the inquiry counsel conducted. Instead, they argue that
“supplementation of these documents did not prejudice Plaintiff in any
way,” and that they “supplemented . . . within the discovery period and
very soon after the[] documents were discovered.” Id.
But as Delta/Airtran makes clear, doing the right thing upon
discovery of documents does not erase a Rule 26(g) violation for failing to
conduct a reasonable search in the first place.

See 846 F. Supp. 2d at

1350 (“[T]he fact that Delta is now producing these documents is
immaterial.”); see also Kipperman v. Onex Corp. , 260 F.R.D. 682, 698
(N.D. Ga. 2009) (Rule 26(g) sanctions are mandatory regardless of
prejudice and thus “[o]nce the court makes the factual determination
that a discovery filing was signed in violation of the rule, it must impose

24

‘an appropriate sanction’”). Defendants’ original document production
was, as they admit and as their supplemental email production
illustrates, not “complete and correct.” Fed. R. Civ. P 26(g). Yet,
defense counsel signed their responses and disclosures and in doing so
certified that those disclosures were complete. See, e.g. , doc. 61-2 at 42.
Unless defense counsel’s completeness belief was “formed after a

reasonable inquiry,” id. (emphasis added), then, a Rule 26(g) violation
occurred.
That inquiry began and ended with McGowan. As Interstate’s
OSHA point person ( see doc. 96 at 16 (“I’m still ultimately the point of
contact for OSHA and OSHA questions.”); doc. 117-6 at 3, he provided
defense counsel with documents responsive to plaintiff’s request for “any
correspondence . . . sent to OSHA by Interstate . . . relating to the”
Venator incident. Doc. 61-2 at 33. Counsel provided him with plaintiff’s
requests and he searched Interstate’s records for responsive documents.

See doc. 117-6 at 3. Specifically, he searched his “inbox, outbox, sent
items, and deleted items” for “correspondence with OSHA by using the

25

terms ‘OSHA’ and ‘Szczepanik,” 22 but searched no other areas on his
computer or Interstate’s computer system.

Id. Defense counsel never

asked him to search additional locations or to involve Interstate’s IT
department in the search, nor did counsel themselves confer with IT
before or after McGowan’s search.
That produced the five pages of emails whose production the Court
previously compelled. See doc. 53 at 13. In the beginning of December
2015, before his re-deposition, McGowan located additional relevant
emails while cleaning out his computer in preparation to retire. Doc.
117-6 at 3. He immediately turned them over to defense counsel who
then sent them to plaintiff at least ten days before McGowan’s
deposition.

See doc. 117-3 at 2. After the deposition, McGowan

contacted an Interstate network and system engineer, Christopher
McLaughlin, who provides “IT support to Interstate,” for help in
determining why he found additional OSHA emails. Doc. 117-5 at 1.
McLaughlin “completed an all mail items search . . . using the search
terms ‘OSHA’ and ‘Szczepanik,’” which went “through every folder in
[McGowan’s] email, including subfolders.” Id. at 3. McGowan’s original
22

Dave Szczepanik “was the OSHA investigator who investigated the accident
involving Mr. Venator.” Doc. 117-6 at 3.
26

search omitted subfolders and thus omitted the emails defendants later
produced. It was tantamount to opening a storage closet and checking
only eye-level shelves while ignoring those above and below.
McGowan’s search thus fell far short of what should have occurred
to ensure that all responsive emails made their way to plaintiff. A
human resources manager by trade (doc. 96 at 17 (HR manager at
Interstate since 1993)), McGowan had no business being the sole person
responsible for conducting electronic searches of Interstate’s computer
systems for OSHA-responsive documents. Even he admits that “I’m not
a guru, a tech guru.” Doc. 97 at 38.
Certainly defense counsel could “rely on assertions by [McGowan],”
but only if “that reliance [was] appropriate under the circumstances.”
Fed. R. Civ. P. 26(g) advisory committee’s note. It wasn’t. McGowan has
no background in computers or searching email systems. What’s more,
defense counsel never made an “effort to assure that [McGowan] ha[d]
provided all the information and documents available.” Id. They instead
took a human resources manager’s word that his own search of a device
he admittedly didn’t fully understand uncovered all there was to know.
As McLaughlin’s post-email discovery shows, counsel could have involved

27

Interstate’s own IT department from the beginning to ensure searches
pulled all responsive documents. Litigation resources, including this
Court’s time, are now being consumed.
Attorneys need not micromanage every detail of investigating a
client’s records (clients are in a much better position to efficiently survey
their own documents), but they must ensure that what the client does
constitutes a reasonable search. Defense counsel here didn’t do that.
They sent McGowan plaintiff’s discovery requests, made no effort to
determine what McGowan did to investigate, and then uncritically
accepted what McGowan gave them in return. Particularly when the
client, like Interstate did, has an IT department, electronic discovery best
practices include using those technology professionals to ensure that
document searches cull from all available sources, not just those nonexperts know about. See Delta/AirTran , 846 F. Supp. 2d at 1350 (defense
counsel failed to confirm that their client’s IT department searched all
backup drives and thus violated Rule 26(g)). Like Delta’s counsel,
defense counsel here neglected to ensure that McGowan properly
searched his computer for all OSHA emails related to the Venator
incident. Because defendants and counsel offer no justification, much

28

less a substantial one, see Whitesell Corp. v. Electrolux Home Products,

Inc. , 2015 WL 5316591 at * 5 (S.D. Ga. Sept. 10, 2015), that neglect
violated Rule 26(g).
Plaintiff also urges the Court to impose Rule 26(g) sanctions for
defendants’ failure to produce Report Two until one day before Hardy’s
deposition. See doc. 61-1 at 19. As with the OSHA emails, the propriety
of sanctions turns on whether defense counsel conducted a reasonable
inquiry prior to certifying that defendants produced all Interstate
incident reports. 23
Also like the email production, McGowan spearheaded the
Interstate investigation into plaintiff’s discovery requests for
supervisor’s reports. See doc. 97 at 8. He worked with Ronnie Moore,
Interstate’s safety coordinator and custodian of accident investigation
report files ( see doc. 101 at 9, 12), to obtain copies of the Supervisors
Report that formed the basis of plaintiff’s first motion to compel. Before
her first deposition in July 2015, Moore produced to McGowan Report

23

Like their OSHA email production, defendants’ original incident report production
was incomplete ( i.e. , they only produced Report One, not Report Two). Counsel
nevertheless certified its completeness.
29

One, but not Report Two because, she says, it was a “draft” of Report
One. Doc. 101 at 11.
McGowan testified that he first saw Report Two the same day
defense counsel produced it to plaintiff. Doc. 97 at 7. He “found out that
Ronnie Moore had it,” after it “came up in a conversation,” so he “got
her to make a copy” to send to defense counsel.

Id. at 8. That

conversation occurred “during a meeting with” defense counsel which
Moore and Hardy attended “for a period of time.” Id. at 9.
To hear Hardy tell Report Two’s tale, however, is to learn that it
surfaced a week before that conversation and his re-deposition. See doc.
103 at 51-52. He “went to [Moore] to look at [Report One],” and “she
mentioned that she had the original document[, Report Two].” Id. at 52.
He reviewed that, but informed no one that it “was still in [Moore’s]
file.” Id. at 53. Moore, in her second deposition, said nothing about the
timing of Report Two’s rediscovery, 24 while defense counsel learned it
existed only when McGowan forwarded the document.
All of that is apparent now, but only because of Court-ordered
depositions (and the witness preparation they engendered) stemming
24

She also said nothing about its existence during her first deposition in July 2015.

30

from plaintiff’s first motion to compel. Critically, that information is not
apparent because defense counsel directed McGowan to ask other
Interstate employees for all incident reports, or followed up with
McGowan on his investigations into discovery requests after he sent over
documents. Instead, counsel sent plaintiff’s requests to McGowan, he
contacted Moore, Moore provided files she determined were responsive
without guidance from counsel (which did not include “drafts,” despite
plaintiff requesting all incident reports), and McGowan forwarded those
to counsel, who then apparently made no “effort to assure that [he] ha[d]
provided all the information and documents available.” Fed. R. Civ. P.
26(g) advisory committee’s note. Counsel never, for example, asked
McGowan where he looked for documents, or otherwise inquired about
the scope and direction of his investigations. The record indicates that
counsel simply gave McGowan plaintiff’s discovery requests, sent him to
collect responsive documents, and received those documents in return.
That wasn’t a “reasonable inquiry” for emails or incident reports.
Attorneys must do more than turn over requests to a client’s employee
and expect that person, particularly if he or she is a non-lawyer, to
conduct an investigation that satisfies Rule 26(g). That person typically

31

will need some additional guidance. Regardless, attorneys have a postinvestigation obligation to make sure all responsive information is
provided. See Fed. R. Civ. P. 26(g) advisory committee’s note; St. Paul

Reinsurance Co. , 198 F.R.D. at 516 (“[U]nder Rule 26(g)(2) . . . [the
subject of the inquiry] is the thoroughness, accuracy and honesty (as far
as counsel can reasonably tell) of the responses and the process through

which they have been assembled .”) (emphasis added). Again, counsel can
rely on a client’s assertions, but in this case blind, uncritical reliance was
not justified. The Court therefore finds that defense counsel failed to
conduct a reasonable inquiry into Interstate’s incident report production
and so violated Rule 26(g).
As noted above, the rule “mandates that sanctions be imposed on
attorneys who fail to meet [its] standards.” Fed. R. Civ. P. 26(g) advisory
committee’s note; King , 2012 WL 592191 at * 3. Although prejudice
plays no role in assessing whether a Rule 26(g) violation exists, it is
relevant in determining the “appropriate sanction,” Fed. R. Civ. P.
26(g)(3), as are the frequency and seriousness of violations.

See

Chudasama v. Mazda Motor Corp. , 123 F.3d 1353, 1372 (11th Cir. 1997)

32

(“The nature of the sanction is a matter of judicial discretion to be
exercised in light of the particular circumstances.”).
Here, defense counsel committed two Rule 26(g) violations
prejudicial to the plaintiff. First, counsel failed to oversee Interstate’s
electronic records searches and ensure that McGowan in particular
provided all OSHA emails in his possession. They never involved
Interstate’s IT team or in any way made sure that McGowan searched all
possible locations for the emails. That is “a far cry from the serious
discovery abuse and outright mendacity engaged in by the defense
counsel sanctioned in Malautea E v. Suzuki Motor Corp. , 148 F.R.D. 362
(S.D. Ga. 1991)],” King , 2012 WL 592191 at * 3, but it does evince a
somewhat surprising misunderstanding of what counsel’s discovery role
should be.
Still, defendants immediately produced the emails after McGowan
found them, and did so almost two weeks before his re-deposition. 25 That

25

Plaintiff notes that McGowan discovered the supplemental OSHA emails only
after plaintiff inquired about apparent gaps in the first set of OSHA emails. Doc. 133
at 10. She then infers nefarious defense motives from the delay between her inquiry
and the supplemental production, defense counsel’s alleged failure to ever respond to
the inquiry, and McGowan’s superior knowledge of the original production’s gaps.
Id. That’s a possible, but not inevitable, inference to make. It is undisputed that
McGowan immediately turned over the supplemental emails to defense counsel after
he found them and counsel in turn immediately turned them over the plaintiff. That
33

lessens the prejudicial impact of untimely production (plaintiff had ample
time to prepare questions based on the newly produced material), but
does not eliminate it completely. Plaintiff had the opportunity to
question McGowan, Moore, and Hardy about the emails, but not
Swindell, who was copied on many of the supplemental OSHA emails.

See doc. 61-3 at 7-9. Because the emails’ disclosure came after the Court
compelled second depositions of three Interstate employees, plaintiff
never had a reason or the chance to seek a second chance to question
Swindell. Even if his hypothetical testimony revealed nothing of great
value, the foregone opportunity itself prejudiced plaintiff.
Report Two’s tardy production also prejudiced plaintiff because she
was unable to depose Swindell. He authored Report Two in its entirety
and signed both it and Report One. He and Hardy (Report One’s
penman) are the only two people who know the significance of the
differences between Reports One and Two.

See doc. 117-1; doc 117-3.

Deposing Swindell to suss out why, for example, he referred to Wingate’s
use of the clamp truck as “improper” in Report Two and why he later

suggests a more benign explanation. Faced with those opposing interpretations of
events, the Court declines to infer more than negligence by McGowan and rules
violations by defense counsel.

34

signed Report One (which omitted that word), could have provided
plaintiff with valuable evidence against defendants. 26 Not being able to
examine Swindell on a crucial document that he authored
unquestionably prejudiced plaintiff.
Twice the Court has waded hip deep into this case’s discovery
waters. Twice those forays have resulted in orders compelling
defendants to produce documents. And twice -- with the OSHA emails
and Report Two -- have defendants and their attorneys blown their Rule
26(g) disclosure obligations to plaintiff’s prejudice.
Although the Court does not find any intent by defendants to
mislead and obfuscate (and so refuses to impose

Malautea-level

sanctions, see Rule 37 analysis infra), defendants and defense counsel
have consistently failed to turn over important discoverable documents
(albeit with enough justification to avoid motion to compel-based
sanctions) and engage in the reasonable inquiries required by Rule 26(g).
Deterring that behavior moving forward merits something more than a
written reprimand.
26

It also, of course, could have produced a credible, benign explanation for the report
discrepancies. But again, it’s the opportunity to depose Swindell that prejudiced
plaintiff, not the lack of hypothetical testimony in her favor.

35

Hence, defense counsel must pay plaintiff’s reasonable expenses
and fees associated with this motion for sanctions. Such a sanction
reinforces to counsel the preeminent importance of “engag[ing] in
pretrial discovery in a responsible manner that is consistent with the
spirit and purposes of Rules 26 through 37’” without imposing greater
costs than necessary to make that message hit home. Delta/AirTran , 846
F. Supp. 2d at 1350. Since its employees contributed to the violations by
conducting a woefully insufficient electronic records search (McGowan),
and unilaterally deciding that Report Two need not be produced (Moore),
Interstate must pay $1,000 ($500 to plaintiff and $500 to the Clerk of
Court) within fourteen days of the date this Order is served.

2. Rule 37(b)
Beyond improperly certifying discovery responses and productions,
plaintiff also argues that defendants intentionally suppressed Report
Two and in doing so violated this Court’s compel order, defrauded the
Court, and cemented a pattern of willfully withholding discoverable
documents. Doc. 61-1 at 24. Plaintiff thus urges the Court to strike
their answers and impose default judgments as sanctions.

Id. In the

alternative, she asks that the Court order a premises inspection of

36

Interstate’s computer system to insure that no further relevant OSHA
emails remain undisclosed. Id. at 24-25.
Defendants counter that, despite initially failing to identify the
emails and Report Two, they immediately produced both after their
discovery. Doc. 117 at 3. That, they say, constitutes “supplementing
discovery pursuant to Fed. R. Civ. P. 26(e),” not willful disobedience of a
Court order or document concealment.

Id. Hence, no sanctions are

warranted.
“In general, Rule 37 provides authority for a court to sanction a
party for abuses in the discovery process.” Malautea v. Suzuki Motor

Corp. , 148 F.R.D. 362, 370 (S.D. Ga. 1991), aff'd sub nom , 987 F.2d 1536
(11th Cir. 1993). “If a party or [its attorney] . . . fails to obey a[
discovery] order . . . the court . . . may” strike pleadings, render default
judgments, stay proceedings, and direct that facts be taken as
established, among other sanctions. Fed. R. Civ. P. 37(b)(2)(A). “Instead
of or in addition to” those severe sanctions, courts may order that a party
or its attorney pay “the reasonable expenses, including attorney’s fees,
caused by the failure” to obey the court’s discovery order.

Id. at

(b)(2)(C). Although a “district court has discretion to decide what

37

sanctions are just,” the harshest sanctions “‘ought to be the last resort -ordered only if non-compliance is due to willful or bad faith disregard of
court orders.’ Adolph Coors Co. v. Movement Against Racism , 777 F.2d
1538, 1542 (11th Cir. 1985).” Malautea, 148 F.R.D. at 371.
The Court already, under Rule 26(g), has imposed on defendants
plaintiff’s expenses and fees associated with her motion for sanctions. To
strike pleadings or impose a default judgment based on the present
record would exceed what is necessary to deter defendants, “and
similarly situated parties, from repeating this . . . conduct.” Malautea,
148 F.R.D. at 373. This case, contrary to plaintiff’s insistence, is not

Malautea. There, Suzuki and its attorneys consistently, over many
orders and discovery requests, interpreted this Court’s instructions as
narrowly as possible to avoid disclosure. Id. They interposed meritless
objections countless times. Id. at 374. And they “answered only as much
of [many interrogatories] as they deemed absolutely necessary to appear
compliant.”

Id. When ordered to reveal a specific set of damaging

documents, defense counsel instructed Suzuki not to based on a crabbed
reading of the order. Id.

38

Whatever Hardy, Moore, and Swindell’s motivations surrounding
Report Two’s creation and delayed production, whatever McGowan’s
intent regarding the OSHA emails, and whatever defense counsel’s
intent in conducting substandard discovery investigations, none of it -singularly or cumulatively -- matches Suzuki’s rank obstructionism and
fraudulent linguistic gymnastics. Again, defense counsel there actively
instructed Suzuki executives to narrowly construe this Court’s orders to

Malautea, 148 F.R.D. at 373. At

avoid disclosing damning evidence.

worst, counsel in this case simply failed to adequately inquire into their
client’s own records investigation. Once Report Two and the
supplemental OSHA emails came to counsel’s attention, they
immediately produced them to plaintiff. Nothing suggests they knew the
documents existed and purposely fell short of an appropriate inquiry in
order to avoid their discovery, nor that they perpetuated an
obstructionistic atmosphere.

Malautea-level sanctions, then, are not

justified.
The Court also declines to order a site inspection of Interstate’s
computer systems. Venator believes that delayed production of the
supplemental OSHA emails, and McGowan’s inadequate search in

39

response to her original discovery requests suggests (1) a nefarious,
concealment-based motive, and (2) that more emails might lurk around
the bend.

See doc. 61-1 at 17. More likely -- and the only negative

inference supported by the record -- is that McGowan simply lacked the
computer or legal knowledge necessary to appropriately investigate. And
McLaughlin’s belated technical search of McGowan’s computer means
that any future search by IT professionals likely would duplicate his
effort. Although inexcusably late, McGowan and defense counsel’s
immediate production of the supplemental emails upon their discovery
points to negligent investigation and subsequent supplementation, not
an intent to deceive. Hence, the sanctions already imposed will suffice.

III. CONCLUSION
The Court GRANTS plaintiff’s second motion to compel. Doc. 59.
The parties must confer regarding a proposed protective order, taking
into account the Court’s instructions outlined above, and file that
proposal within ten days of the date this Order is served. Once the Court
enters that order, defendants must produce to plaintiff the Swindell
evaluation submitted for in camera review within three days. Within ten
days of the protective order’s entry, defendants must produce any other

40

documents, notes, or memoranda (to the extent they exist) that reflect
supervisory evaluations (whether verbal or written) of Swindell
conducted between November 27, 2012 and the present.
The Court GRANTS IN PART and DENIES IN PART plaintiff’s
motion for sanctions. Doc. 61. It will not strike defendants’ answer or
enter default judgment. Nor will it require defendants to submit to a site
inspection so plaintiff can search for additional emails. It will, however,
require that defense counsel pay plaintiff’s attorney’s fees and costs
associated with litigating her sanctions motion. 27 And Interstate must
remit $500 to the Clerk of this Court and $500 to plaintiff within
fourteen days of the date this Order is served.

SO ORDERED , this 15th day of April, 2016.

-

-

-

LilcilED STATES MAGISTRATE JUDGE
SOUThIERI4 DISTRICT OF GEORGIA

27

Within 21 days of the date this Order is served the parties in good faith must
confer and genuinely attempt to resolve the appropriate amount of fees and costs.
Only after that conference may they invoke judicial assistance in determining a fee
award.
41