Snodgrass v. Esper

Filing 112

ORDER denying 97 Motion for Sanctions; granting 99 Motion to Compel; granting in part and denying in part 100 Motion to Compel. Signed by Magistrate Judge J. Mark Coulson on 2/10/2021. (cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
J. MARK COULSON
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
Phone: [phone]
Fax: [phone]

February 10, 2021
LETTER TO ALL COUNSEL OF RECORD
Re:
Snodgrass v. Esper
Civil No.: 1:18-cv-00450-SAG
Counsel:
This matter was referred to me for discovery and all related scheduling. (ECF No. 48).
Now pending before the Court is Plaintiff’s Motion for Sanctions (ECF No. 97) and Motion to
Compel (ECF No. 100), and Defendant’s Motion to Compel (ECF No. 99). The Court granted
both parties’ motions for extension of time to respond, (ECF Nos. 107; 108), and the parties filed
timely responses to each motion. (ECF Nos. 109; 110; 111). The issues are fully briefed and no
hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For reasons more fully explained below,
Plaintiff’s Motion for Sanctions (ECF No. 97) is DENIED, Defendant’s Motion to Compel (ECF
No. 99) is GRANTED, and Plaintiff’s Motion to Compel (ECF No. 100) is DENIED in part and
GRANTED in part.
I.

Background

In this case, Plaintiff alleges violations of the Rehabilitation Act of 1973, codified at 29
U.S.C. § 701, et seq., during Plaintiff’s tenure as a civilian employee with the U.S. Department of
the Army. (ECF No. 1 at 1). During the relevant time period, the Army employed Plaintiff as an
Information Technology Specialist and Program Analyst in various offices. Id. at 4–6. The
essence of Plaintiff’s complaint details Defendant’s discrimination due to Plaintiff’s medical
conditions and Defendant’s failure to provide reasonable accommodations, namely teleworking
opportunities. Id. at 1–2.
II.

Plaintiff’s Motion for Sanctions

Plaintiff’s Motion for Sanctions is derived from Federal Rules of Civil Procedure 26 and
37, which govern discovery related sanctions. Specifically, Plaintiff seeks attorneys’ fees and
costs. (ECF No. 97 at 12). In the Fourth Circuit, district courts determining whether to sanction
a party under Rule 37 must consider four factors: “(1) whether the non-complying party acted in
bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for
deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would

have been effective.” Anderson v. Found. for Advancement, Educ. & Employ. of Am. Indians, 155
F.3d 500, 504 (4th Cir. 1998); Paradyme Mgmt., Inc. v. Curto, 2018 WL 9989656, at * 7 (D. Md.
June 11, 2018). “The most severe Rule 37 sanctions must be available in appropriate cases,
however, ‘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.’”
Opportunities Dev. Grp., LLC v. Andruss, 2015 WL 2089841, at *6 (E. D. Va. Apr. 30, 2015)
(quoting Natl. Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)). In every
case, district courts enjoy wide discretion when determining the appropriateness of sanctions for
discovery violations. See Hartford Fire Ins. Co. v. Leader Const. Co., 176 F.R.D. 202, 205 (E. D.
N.C. 1997).
As background, the instant motion stems from Defendant’s document production in
response to Plaintiff’s January 2019 Rule 34 requests. (ECF No. 97 at 1). In October 2019,
Defendant produced a large volume of data.1 On August 7, 2020, this Court conducted a
conference call and ordered Defendant to “conduct an additional search of the [October 2019]
production based upon Defendant’s good faith attempts to limit it to responsive, relevant
documents,” and “produce such to Plaintiff.” (ECF No. 75). Defendant then produced a culleddown version of the October 2019 production on October 5, 2020.2 On December 14, 2020,
Defendant produced a third, further culled-down production on December 14, 2020.3
In short, Plaintiff argues that “approximately 98% of the documents initially produced were
unresponsive to Plaintiff’s requests, and the responsive documents were only ultimately produced
over a year and nine months after they were originally due, at the close of discovery, and without
meaningful opportunity to digest and employ them during” Plaintiff’s depositions. (ECF No. 97
at 2). Defendant responds that it did not agree to undertake a review for responsiveness in light of
Plaintiff’s overbroad and disproportionate search proposal, Defendant produced documents in the
manner in which they are kept in the usual course of business, and any delay associated with the
October 2019 production is attributable to Plaintiff.” (ECF No. 110 at 13–19).
Considering the aforementioned factors, Defendant’s conduct does not rise to the level
outlined by the Fourth Circuit as to require the imposition of sanctions. The voluminous results
of Defendant’s October 2019 production were foreseeable in light of the overly-broad search terms
Plaintiff insisted Defendant implement. (ECF No. 110 at 6–7). Indeed, Plaintiff’s request to
conduct a search with no date parameters and for more than twenty custodians could only be
expected to produce such a large amount of data. Plaintiff cannot rebuff Defendant’s reasonable
limitations designed to limit the search results to relevant documents and then turn around to place
the burden of narrowing the large production squarely on Defendant.

1

The parties dispute the size of this production. Defendant references Bates stamps to count 425,930 pages (ECF No.
110 at 2), while Plaintiffs suggest the number is closer to 1.37 million pages. (ECF No. 97 at 3).
2

Again, the parties disagree on the size of this reduced production. Defendants suggest the October 2020 production
totaled 103,247 pages (ECF No. 110 at 12) while Plaintiffs contend it is as much as 267,010 pages. (ECF No. 97 at 4
n.4).
3

The final production ranges somewhere between 7,664 pages (ECF No. 110 at 12) and 28,258 pages (ECF No. 97
at 5).

To the extent that Plaintiff was prejudiced by the October 2019 production, such prejudice
was cured by this Court’s order directing Defendants further limit and reproduce relevant and
responsive documents. There being no evidence of bad faith or a need to deter this particular sort
of behavior, the Court finds no basis to sanction Defendant. As such, Plaintiff’s Motion for
Sanctions (ECF No. 97) is DENIED.
III.

Motions to Compel
A. Defendant’s Motion

Plaintiff has withheld 266 documents on the basis that “each document represents
communications between [Plaintiff] and [Plaintiff’s] union representatives concerning actual or
potential grievances, personnel policies and practices, general conditions of employment, and
proposed disciplinary and adverse actions.” (ECF No. 109 at 2). Defendant seeks to compel
Plaintiff’s production of these documents asserting that this Court “should decline Plaintiff’s
invitation to create a union-grievant or union-employee privilege” because “[t]here is no precedent
in the Fourth Circuit or District of Maryland that recognizes” such a privilege “protecting
communications between employees and union representatives from disclosure.” (ECF No. 99 at
2). Plaintiff principally relies on the Federal Service-Labor Management Relations Statute
(“FLMRA”), 5 U.S.C. §§ 7101 et seq., and argues that “[a]ll relevant authority holds that federal
agency management may not compel a federal employee to disclose her communications with her
union representatives concerning matters covered by the FLMRA.” (ECF No. 109 at 2).
This Court is inclined to agree with Defendant and will not recognize a union-grievant or
union-employee privilege. There is a notable absence of authority from courts in this district and
the United States Court of Appeals for the Fourth Circuit. Even so, Plaintiff’s reliance on the
FLMRA and cases in the D.C. Circuit is distinguishable. As Defendant correctly indicates, the
FLMRA ensures an employee’s union representation during “formal discussion between one or
more representatives of the agency and one or more employees in the unit or their representatives
concerning any grievance or any personnel policy or practices or other general condition of
employment.” 5 U.S.C. § 7114(a)(2)(A). Indeed, as applied in United States Department of
Justice v. Federal Labor Relations Authority, this section “assures the right and duty of a union to
represent employees in disciplinary proceedings,” so that an employee may make “full and frank
disclosure[s] to his or her representative” to obtain “adequate advice and a proper defense.” 39
F.3d 361, 369 (D.C. Cir. 1994) (emphasis added). It does not then follow that such protections
would be accompanied by a privilege to withhold documents in this Court. United States
Department of Justice contemplated as much:
The privilege the Authority recognizes, derived from the section 7114(a) right of
an employee to union representation in an investigation, may be good as against
management. But it is not good as against the world. The Authority’s jurisdiction
is limited to labor-management relations. As its counsel agreed at oral argument,
whatever privilege the Authority set up in that context would not shield a
conversation between an employee and his union representative from disclosure in
court. . . .

Id. For these reasons, and noting that several courts choose not to recognize a union-employee or
union-grievant privilege, this Court declines the opportunity to hold otherwise. See, e.g., Jenkins
v. Bartlett, 487 F.3d 482, 491 n.6 (7th Cir. 2007), Boyer v. Rock Twp. Ambulance Dist., 2012 WL
1033007, at *3 (E.D. Mo. Mar. 27, 2012); Parra v. Bashas’ Inc., 2003 WL 25781409, at *4–5 (D.
Ariz. Oct. 2, 2003).
Accordingly, Defendant’s Motion to Compel (ECF No. 99) is GRANTED.
B. Plaintiff’s Motion
Plaintiff argues that Defendant’s counsel—Theodore Haussman—made business decisions
regarding Plaintiff’s requests for accommodations, time and attendance, and disciplinary action.
(ECF No. 100 at 2). As it pertains to this motion, Defendant produced a privilege log with its
October 2019 production. After this Court’s August 7, 2020 status call, Defendant produced a
revised privilege log “containing 662 entries, reflecting approximately 509 communications to,
from, or copying Mr. Haussman, and 89 drafts of memoranda or emails.” Id. In the revised
privilege log, Defendant had “removed 187 entries from its prior iteration.” Id. Defendant
produced yet another revised privilege log on November 30, 2020 “removing 11 entries and adding
work product designations to almost all entries – and a declaration from [Mr.] Haussman outlining
his involvement in Plaintiff’s employment.” Id. at 3–4.
Plaintiff now contends that “a substantial number of the remaining entries appear to
concern management or personnel decisions that for which legal advice would have limited
implications,” and requests this Court compel Defendant to produce non-privileged documents,
and conduct in camera review of a sampling of entries contained in Defendant’s privilege log.
Defendant responds that the Attorney-Client privilege applies to Mr. Hausmann’s
communications, and that Plaintiff’s supervisors sought legal advice as it pertained to Plaintiff’s
request for accommodations, leave, time and attendance issues, disciplinary action, and
government computer restrictions. (ECF No. 111 at 6–12).
The Court will uphold Defendant’s privilege log. However, to ensure that Plaintiff’s
concerns are not without merit, the Court will conduct an in camera review of a sampling of
Defendant’s privilege log—specifically half of those entries Plaintiff enumerates in her motion.
(ECF No. 100 at 10). Defendant shall provide every other entry referenced by Plaintiff starting
with No. 15 (i.e., Nos. 15, 17, 36, 50, and so on) to my chambers no later than Friday, February
19, 2021. Upon receipt, the Court will review the entries and issue a separate order based on its
findings.
Therefore, Defendant’s Motion to Compel (ECF No. 100) is DENIED in part and
GRANTED in part.
Despite the informal nature of this letter, it is an Order of the Court and the Clerk is directed
to docket it as such.
Sincerely yours,
/s/

J. Mark Coulson
United States Magistrate Judge
cc: The Honorable Stephanie A. Gallagher