Sanford v. Detroit, City of et al

Filing 393

OPINION AND ORDER Denying Defendants' 352 Motion to Extend Discovery and Granting Plaintiff's 338 Motion for Sanctions. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVONTAE SANFORD,
Plaintiff,
v.

Case Number 17-13062
Honorable David M. Lawson

MICHAEL RUSSELL and JAMES TOLBERT,
Defendants.
__________________________________________/
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO EXTEND
DISCOVERY AND GRANTING PLAINTIFF’S MOTION FOR SANCTIONS
The parties are familiar with the facts in this case in which the plaintiff, Davontae Sanford,
alleges that the defendants, Detroit police officers investigating a quadruple homicide, fabricated
evidence implicating the plaintiff in the murders that resulted in his wrongful conviction and
incarceration. The Court entered a scheduling order early in this lawsuit that established, among
other things, deadlines for identifying expert witnesses, exchanging expert witness reports, and
completing discovery. On at least three occasions, the defendants have sought to add expert
witnesses to the case after the deadlines expired, over the vigorous objections of the plaintiff. The
Court denied those requests because the defendants did not demonstrate good cause to modify the
scheduling order.
The defendants now have filed a fourth motion to add expert witnesses and extend
discovery, this time, they say, prompted by a fortuitous contact from the Michigan State Police
concerning physical evidence that actually may connect the plaintiff to the murders. The plaintiff,
skeptical that the State Police continued to investigate the four homicides that Vincent Smothers
had already confessed to committing, demanded the documents that led to this supposed new DNA
evidence. The defendants’ belated disclosures revealed that the new evidence did not originate

from the police at all; rather, it was generated by defense counsel’s late-in-the-day attempts to
work up the case.
The plaintiff now has filed a motion asking the Court to award him the costs associated
with the cumulative litigation that was required to procure the disclosure by defendants’ counsel
of a lab report from the MSP and records of correspondence between defendants’ counsel and the
MSP and other entities about forensic testing of certain evidence, all of which came to light
belatedly during the parties’ sparring over the defendants’ third (also futile) attempt to reboot the
discovery in this case.
The defendants once again have not shown good cause to modify the scheduling order to
allow the addition of expert and other witnesses, and they have not shown that their belated
disclosures are harmless or substantially justified. Moreover, defense counsels’ conduct, including
their misrepresentations, throughout the dispute over the evidence needlessly has increased the
costs of litigation by multiplying the workload of the plaintiff’s legal team without advancing the
litigation. The defendants’ motion will be denied and the plaintiff’s motion for costs will be
granted.
I.
The parties are no strangers to the facts of the case. Plaintiff Davontae Sanford alleged in
a complaint that when he was fourteen years old, he was coerced into confessing and pleading
guilty to murdering four people, largely based on the misconduct of the defendants who were
Detroit police officers at the time. After Vincent Smothers confessed to the crimes and confirmed
that Sanford was not involved, a State Police investigation uncovered evidence that lent substance
to Sanford’s claims. Sanford’s convictions of the four murders were vacated and the case against

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him was dismissed, but not until he had served about nine years in prison. He brought this case
against his former accusers.
Both of the present motions focus on the potential evidentiary value of a certain pair of
blue and white “Jordans” sneakers that were seized by police during their initial investigation of
the murders, which presently are held in evidentiary custody by the Michigan State Police (MSP).
The sneakers were found by police inside a washing machine at the plaintiff’s home in the early
morning hours on September 18, 2007, when the police went to the home to seek parental consent
to interview the plaintiff about his suspected involvement in the Runyon Street murders.
The defendants conspicuously highlighted in their motion a photograph of the sneakers,
which they say shows a “reddish/brown substance” on the side of one shoe. The defendants
throughout their filings repeatedly suggest that this substance is or may be blood. However, a
December 7, 2018 report from the MSP Forensic Lab stated that the outside of the shoes had been
subjected to a “phenolphthalein test,” which “[d]id not indicate the presence of blood.” Laboratory
Report dated Dec. 7, 2018, ECF No. 357-6, PageID.17811. On January 3, 2019, MSP Lieutenant
Robert Weimer sent to defendants’ attorney Michael Berger a copy of this negative test result
indicating that there was no blood on the shoes. The plaintiff’s lawyer, however, asserts that she
never received a copy of that MSP lab report, despite her repeated formal and informal requests
for supplementation of defendants’ production of documents relating to the murder investigation,
until it finally was disclosed by defense counsel on May 28, 2019 — after the defendants had filed
a motion asking the Court to appoint a DNA examiner. See Email dated May 28, 2019, ECF No.
357-7, PageID.17818. No reference to the negative blood test result was featured anywhere in the
defendants’ motion for appointment of a DNA expert (filed in May 2019), or in their present
motion for an extension of expert discovery (filed in June 2020).

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In their opening brief on the present motion to extend discovery, the defendants assert that
the plaintiff “testified [at his 2018 deposition] that he told [defendant] Russell that any blood on
the shoes would be from a dog,” citing page 202 of the deposition transcript. But that portion of
the testimony discloses no such admission by the plaintiff and instead comprises only his testimony
about encountering investigating officers and a K-9 unit who were canvassing the neighborhood
in the hours after the shootings. Davontae Sanford dep., ECF No. 352-2, PageID.17006. Other
cited portions of the testimony also do not reveal any such admission. The plaintiff did testify that
he gave the gym shoes to police while they were at his grandmother’s house seeking consent to
interview him, Sanford dep. at PageID.17011, and he also stated that during the custodial interview
defendant Russell told the plaintiff that he “was lying” and that “they found blood on [his] shoes,”
id. at PageID.17012. But there is no indication anywhere in the record of any admission by the
plaintiff that he made any specific statement to police about the origin of any supposed blood on
the shoes.
An April 26, 2019, report of forensic DNA testing on the shoes that was performed by the
Michigan State Police stated that the “[t]he DNA profile[s] obtained from [both inside and outside
swabs of the shoes] [were] not sufficient for further interpretation and analysis due to [their]
complexity and number of potential contributors,” and “therefore, no comparison can be made to
DNA reference samples” that had been obtained from the blood of the four murder victims. MSP
Forensic Laboratory Report, ECF No. 352-12, PageID.17044. Plaintiff’s counsel asserts that this
report was not disclosed by defense counsel until May 24, 2019, when it was forwarded along with
an email seeking concurrence in the defendants’ motion to appoint a DNA examiner, which was
filed later that same day.

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Notwithstanding the inconclusive results of the MSP’s DNA analysis, further testing of
swabs from the shoes was conducted by Cybergenetics Corp. after the MSP forwarded a digital
copy of its DNA testing data. (More on how that came to pass is discussed below.) Reports of the
Cybergenetic testing (which appears to be merely a re-analysis of digital data files from MSP’s
test run) stated “preliminary, unconfirmed results” featuring a “genotype match” between DNA
from “item 16Ae” (a swab from the outside of the sneaker) and “victim 20e” (apparently Deangelo
McNoriell). Cybergenetics Case Packet, ECF No. 352-16, PageID.17062. A “draft report” stating
those “preliminary, unconfirmed results” was authored on January 24, 2020 by Beatriz Pujols,
whom the defendants now seek to add to their trial roster as an expert witness to testify about the
DNA examination. The “final analysis” of the results further characterized the match as follows:
“A match between the shoes outside (Item 16Ae) and Deangelo McNoriell (Item 20e) is [] 9.67
thousand times more probable than a coincidental match to an unrelated African-American
person. . . . For a match strength of 9.67 thousand, only 1 in 91.3 thousand people would match as
strongly.” Report dated Feb. 4, 2020, ECF No. 352-18, PageID.17071. In support of their motion
for further discovery, the defendants assert that “if the brownish substance on the shoes is blood
or some other concentrated substance containing McNoriell’s DNA, then a swab of just that area
should result in a higher match rate” than the DNA correspondence detected by the Cybergenetics
“preliminary” analysis.
The parties went to great lengths in their papers expounding on the timeline of interactions
between counsel for the parties and between defendants’ counsel and the Michigan State Police
and other entities regarding the testing that was done on the shoes. The record of correspondence
presented shows that at least the following exchanges are undisputed.

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On October 25, 2018, defendants’ lawyer Michael Berger emailed MSP Lieutenant Robert
Weimer and wrote as follows:
Thank you again for allowing me to inspect the property on the Sanford/Smothers
case. There was one thing that I found interesting, that I needed to cross reference
with DPDs files and which I would like to get your thoughts on. In the bag labeled
Item #52 (DPD E24576004) there are some blue and white shoes that were
collected by DPD in connection to the Runyon Street quadruple homicide. Sergeant
Fellner and I inspected them and she mentioned that it looked like one of the shoes
had blood on it.
I just had the opportunity to cross reference my DPD homicide file and it does not
look like those shoes were tested for blood (and obviously not cross referenced for
DNA from the victims of the murders). Would MSP be willing/able to test those
shoes for blood? According to my records, the Wayne County Medical
Examiner[’]s Office took DNA samples from the victims. So, if it is blood, perhaps
that can be cross referenced with the victim’s DNA, assuming WCMEO still has it.
If MSP is able to do testing, would we be able to get a copy of the results?
Email dated Oct. 19, 2018, ECF No. 357-4, PageID.17806. That email was sent — perhaps
coincidentally — on the same day that the Court denied the defendants’ second motion to extend
discovery to disclose additional experts.
On May 15, 2019, the Court issued its corrected opinion and order denying the defendants’
motion for summary judgment. Notably — again, perhaps, coincidentally — on that same date,
attorney Berger emailed Andrea Young at the MSP, asking whether any more detailed DNA
analysis could be performed to resolve the “inconclusive” results that had been indicated in the
MSP’s April 2019 report. Young responded that the other form of testing that commonly would
be used was known as “TrueAllele,” and that she would forward information about the entity
(Cybergenetics) that could perform such testing. The “Case Packet” from Cybergenetics included
a record of correspondence about the DNA analysis on the shoes. The earliest correspondence
noted in the file is a May 23, 2019 email from attorney Berger, in which defendants’ counsel wrote
as follows:

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I am a Civil Attorney who has a case where identifying DNA on a pair of shoes
could be very critical to our case. The Police Agency that has possession of the
shoes swabbed the shoes and conducted a DNA comparison with potential
contributors for the DNA (a PCR). However, its results came back as having too
many potential contributors; I understand there are four or more. That police
agency recommended I reach out to your organization to see whether your
technology could compare the DNA with the potential contributors’ DNA. Is this
something you could help us with? If so, could you please provide me a fee
schedule and advise me of what information you will need? My understanding
from the police agency is that it has an E-Gram and .ssa files. Would those be
sufficient?
Correspondence dated May 23, 2019, ECF No. 357-12, PageID.17848. On May 24, 2019,
Stephanie Frisima replied to defendants’ counsel with a copy of a “case submission form” and
directions for submitting evidence to obtain a “free screening of your evidence data.”
On that same date, the defendants filed their earlier motion (ECF No. 320) in which they
asked the Court to appoint an expert DNA examiner to perform further testing on the blue and
white sneakers. On June 10, 2019, attorney Berger emailed Wayne County assistant prosecutor
Athina Siringas, forwarding to her copies of emails from Cybergenetics and the case submission
form, and informing her that an “initial DNA screening” could be conducted at “no charge.” It is
unclear what may have transpired in the interim, but on June 21, 2019, the defendants withdrew
their motion seeking court appointment of a DNA expert.
Subsequent correspondence in the Cybergenetices file indicates that a completed case
submission form and electronic data files eventually were received by Cybergenetics from the
MSP between October 24 and November 24, 2019. The “preliminary results” were discussed with
MSP investigators, but it is undisputed that neither the MSP nor the Wayne County prosecutor
ever requested a final report of the analysis. It is unclear who at the MSP or the prosecutor’s office
authorized the submission of the case files. However, an email from defendants’ counsel to
plaintiff’s counsel on February 20, 2020, confirmed that by that time neither agency had elected
to purchase the “final report” of the results from the Cybergenetics analysis. Defense counsel, in
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the meantime, had contacted Cybergenetics again several times between December 30, 2019, and
January 10, 2020, to inquire about purchasing a copy of the final results, which eventually was
produced by Cybergenetics and sent directly to defendants’ counsel. Subsequent correspondence
between counsel for the parties in this case indicates that the full “case packet” was obtained from
Cybergenetics at a cost of $2,500, which was paid by the defendants. See Email thread from Feb.
13, 2020 through May 28, 2020, ECF No. 357-14, PageID.18102-110.
Plaintiff’s counsel asserts that none of the above correspondence between defendants’
counsel and the MSP soliciting further testing on the shoes ever was disclosed to her before May
28, 2020 — once again, perhaps, coincidentally — on the same day that the court of appeals issued
its opinion summarily rejecting the defendants’ interlocutory appeal of the denial of their summary
judgment motion. However, the included cover sheet indicates that the “case packet” was
compiled on March 17, 2020. The plaintiff also points out that the excerpt of the “case packet”
that was included as an exhibit to the defendants’ present motion to reopen discovery included the
entire file materials except the itemized record of correspondence.
The defendants’ expert disclosures initially were due on August 11, 2018. One day before
that deadline, the defendants moved for a lengthy extension of the disclosure date, principally
because they had not retained any experts. The Court denied that request but granted a limited
extension through September 7, 2018. The defendants attempted to serve “reports” of their
numerous experts’ purported opinions by the new deadline, most of which the Court later found
were wholly inadequate. On October 19, 2018, the Court denied the defendants’ second motion
to extend expert deadlines but modestly extended the due date for motions challenging experts.
All of the expert witnesses that the defendants had attempted to disclose — save a handful whose
opinions are not pertinent here — eventually were stricken by the Court when it issued its opinion

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granting the plaintiff’s motions to exclude more than 50 persons who had been identified by the
defendants as potential expert witnesses for trial. That opinion reviewed in exhaustive detail the
defendants’ several attempts to circumvent the discovery schedule that was established by the
Court and concluded with the observation that the defendants’ failure to make proper and timely
disclosures of their expert witnesses could not be excused as either substantially justified or
harmless. Op. & Order, ECF No. 298, PageID.14229.
The defendants now ask the Court to allow them “to add witnesses who worked on testing
Plaintiff’s shoes for DNA from the victims of the Runyon Street Murders,” and, further, to “allow
limited discovery which would allow the parties to obtain further DNA testing” on the shoes. The
defendants assert that, as a result of certain testing on the shoes, which they represented as having
been performed fortuitously by the Michigan State Police, “[t]he DNA of [murder victim]
Deangelo McNoriell, one of the victims of the Runyon Street Homicides, was found on Plaintiff’s
shoes.” In addition, they want to expand the DNA testing to see if Vincent Smothers’s DNA can
be discovered, and they want to test other clothing that belonged to plaintiff Sanford. The
witnesses they propose to add would include individuals in the chain of custody for the sneakers
and Cybergenetics examiner Beatriz Pujols.
The defendants believe that they need only show good cause for their request under Federal
Rule of Civil Procedure 16(b)(4), which they attempt to establish by pointing to purportedly tardy
action by the MSP, stating that “because the Michigan State Police did not provide CyberGenetics
with the DNA data until October 25, 2019 and her preliminary results were not available until
December 19, [2019], and then the final results were not issued until February 4, 2020.” The
defendants assert that it is imperative” that the shoes (and the plaintiff’s other clothing that was
seized) be tested further because “if the reddish-brownish substance on Plaintiff’s shoes is blood

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from McNoriell or some other high concentration of DNA from McNoriell, then if one were to
swab just that area that looks like blood, then the match statistic between McNoriell’s known
sample of DNA and the sample of DNA from the exterior of Plaintiff’s shoe would increase,” and
a more definitive DNA match would bolster the defendants’ position that the plaintiff committed
the shootings or was present when they were committed. They further contend that if any of
Vincent Smothers’s DNA is found on the plaintiff’s shoes and clothes, then it would bolster their
position that the plaintiff was an accomplice of Smothers in the murders, which would help to
resolve the seeming conflict between the plaintiff’s and Smothers’s confessions.
II.
The plaintiff argues that the defendants’ motion is premised on the wrong rule of decision,
Rule 16(b)(4), and that the proper frame of reference is supplied by Rule 37(c)(1), which specifies
that exclusion of evidence not timely disclosed is “automatic and mandatory,” unless the movant
shows that the late disclosure was either substantially justified or harmless. He argues that the
defendants’ showing falls far short of that benchmark because the record of correspondence
demonstrates that the defendants made no attempt to initiate the development of any such expert
evidence until mid-October 2018, long after discovery had closed, and after the Court had rejected
their second request to extend the time for expert disclosures. The plaintiff argues that if the
proposed testimony were allowed, the Court essentially would have to reboot the entire expert
discovery process and allow a full new round of motion practice to consider challenges to the
reliability and relevance of the evidence, including both foundational (chain of custody) issues,
and the validity of the supposed “match” expressed in the report of “preliminary, unconfirmed”
results.

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The Court need not resolve which rule of procedure applies to the defendants’ extension
request. Their excuses do not qualify under either standard.
Federal Rule of Civil Procedure 16(b)(4) states that a court may modify a case management
schedule only upon a showing of “good cause.” Fed. R. Civ. P. 16(b)(4). A party may show good
cause by demonstrating a “reasonable justification” for its failure to complete a task within the
time prescribed. See Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). It also may do so by
advancing specific facts that describe the magnitude of the undertaking, the time available for
completion, and circumstances that would prevent a reasonable person from performing within the
time allowed by the Court. United States ex rel. Kalish v. Desnick, 765 F. Supp. 1352, 1354 (N.D.
Ill. 1991). A party’s regret of an unfruitful litigation strategy generally will not supply good cause
for relief from scheduling deadlines. McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt,
Inc., 298 F.3d 586, 595 (6th Cir. 2002) (“[N]either strategic miscalculations nor counsel’s
misinterpretation of the law warrants relief from judgment.”). Moreover, “clients must be held
accountable for the acts and omissions of their attorneys,” Pioneer Inv. Servs. Co. v. Brunswick
Assoc. Ltd., 507 U.S. 380, 396 (1993) (citing Link v. Wabash R. Co., 370 U.S. 626, 633 (1962)),
and it is well settled that parties are “bound by the mistakes of their lawyers,” absent compelling
circumstances, United States v. Hall, 979 F.3d 1107, 1124 (6th Cir. 2020).
Under Rule 37(c), when a party does not comply with the disclosure requirements, the
party “‘is not allowed to use’ the information or person that was not disclosed ‘on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.’” Baker Hughes
Inc. v. S&S Chemical, LLC, 836 F.3d 554, 567 (6th Cir. 2016) (quoting Fed. R. Civ. P. 37(c)(1)).
According to the Sixth Circuit, “Rule 37(c)(1) mandates that a trial court sanction a party for
discovery violations in connection with Rule 26(a) unless the violations were harmless or were

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substantially justified.” Sexton v. Uniroyal Chemical Co., 62 F. App’x 615, 616 n.1 (6th Cir.
2003). “‘Rule 37 is written in mandatory terms, and is designed to provide a strong inducement
for disclosure of Rule 26(a) material.’” Ibid. (quoting Ames v. Van Dyne, 100 F.3d 956, 1996 WL
662899, at *4 (6th Cir. Nov. 13, 1996) (Table)). The party requesting exclusion under Rule
37(c)(1) need not show prejudice; rather, the non-moving party must show that the exclusion was
‘harmless’ or ‘substantially justified.’” Saint Gobain Autover USA, Inc. v. Xinyi Glass North
America, Inc., 666 F. Supp. 2d 820, 826 (N.D. Ohio 2009); see also Roberts ex rel. Johnson v.
Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003).
This is not the first time in this case that the Court has been presented with a defense request
to reset the discovery schedule for no good reason other than defense counsel’s lack of
attentiveness to the deadlines established at the beginning of the case. Twice before, the Court has
rejected the defendants’ attempts to avoid the consequences of the neglect by counsel of their
discovery obligations. In a third attempt, the defendants filed and then withdrew a frivolous plea
for a Court-appointed expert to extract them from their dilemma. They now come before the Court
with their fourth request for an extension of expert discovery. Certainly, the case has not proceeded
according to the schedule originally contemplated. However, trial likely would have occurred
already had the defendants not taken an interlocutory appeal of questionable merit.
Nonetheless, this fourth request for an enlargement of deadlines must be evaluated on its
own merits, considering the reasons the defendants have put forth explaining why they should be
able to develop a new line of scientific evidence nearly four years after the case was filed. Whether
measured by the yardstick of substantial justification, harmlessness, or merely good cause, the
defendants offer no good reason for the Court to grant the relief sought. Moreover, the case for
the extension is founded on brazen misrepresentations and omissions.

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The defendants want the Court to give them more time to develop supposed DNA evidence
suggesting the plaintiff’s presence at the crime scene on the night of the murders, which they
believe would corroborate their defense that he actually committed or participated in the murders.
The problem, however, is that the request comes far too late, with no good excuse for the delay.
The present motion was filed more than 20 months after discovery closed in this case, and the case
is now, once again, on the eve of trial, which is scheduled to begin on May 11, 2021. The Court
recently advised the parties that the trial was unlikely to commence via in-person proceedings on
that date, but that a virtual proceeding may yet be possible. Thus, no formal adjournment presently
has been granted, and a further delay of the trial is not (yet) inevitable. Meanwhile, the defendants
have mounted their fourth attempt to delay the proceedings. But they have not explained why they
could not have developed the expert testimony that they now seek leave to procure within the 10
months that were allowed by the Court for full discovery on the merits of this case.
Little more remains to be said about the defendants’ total failure to make any effort toward
timely completion of discovery than what already has been said by the Court when it twice
previously rejected the same request:
None of the pertinent factors support the defendants’ position that their disclosure
violations were either substantially justified or harmless. The surprise to the
plaintiff as a result of the tardy disclosure of numerous expert opinions (at long last
only in any coherent fashion in the defendants’ response brief) is extreme . . . . The
defendants contend that the evidence is “critical” to their rebuttal of the plaintiff’s
presentation on damages, but they do not even attempt to offer any plausible
explanation for their failure to make any adequate effort at disclosure. In fact, as
discussed further below with respect to the defendants’ expert Dr. Welner, it
appears that the entire reason that the defendants never properly designated or
disclosed their experts was simply because they assumed that they would be granted
a months-long extension of the expert deadlines, and they therefore made no effort
to comply with the schedule imposed by the Court. . . . The defendants previously
conceded on the record that Dr. Welner did not produce a proper report on time,
because they assumed that the Court would allow more time. St. Peter never
produced a report apparently because the defendants never bothered to have him
look at the salient exhibits until the day before discovery closed. For all of the same
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reasons noted . . ., the defendants’ failure cannot be excused as either substantially
justified or harmless.
Sanford v. Russell, No. 17-13062, 2019 WL 2051986, at *5, *11 (E.D. Mich. May 9, 2019).
The defendants contend that “good cause” supports their request because, according to
them, they only learned that helpful DNA evidence might exist through the “happenstance” of
MSP’s “ongoing investigation” of the murders. But the record of the correspondence between
defense counsel, the MSP, and Cybergenetics exposes the actual provenance of this “happy
accident,” which was nothing more than a brazen attempt by defendants’ counsel to induce the
Court to revisit the defense team’s groundless requests for discovery relief, which the Court twice
previously had rejected. The motion conspicuously omits any mention of the role that defense
counsel played in procuring the testing, which the defendants characterized as being instigated
independently by public authorities and not by them. But the undisputed record shows that the reanalysis of the DNA evidence on which the motion entirely is premised was instigated, pursued,
and ultimately paid for by the defense. The public authorities involved did nothing more than
transmit data files to the testing provider, and they did that only after the repeated prompting and
cajoling by defense counsel persuaded them to take advantage of a “free preliminary screening”
of the DNA data. When the “results” were made available, the police investigators and prosecutor
showed no interest in obtaining a full report. However, the defendants eventually did obtain the
results, at their expense. Thus, the “new evidence” on which the motion is premised is, at bottom,
simply an analysis produced by experts who were engaged and compensated by the defendants,
for the purpose of developing physical evidence that the defense team hoped would aid their case.
Ordinarily, such efforts are part and parcel of working up the evidence for trial. But here the work
was not completed — or even begun — until well after the deadline that the Court had set for
developing this “crucial” evidence had long passed.
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The defendants attempt to cast this “new evidence” as emanating from a chain of events
that they had no hand in bringing about, but the undisputed record plainly shows otherwise. The
omission from the motion of the record of the correspondence associated with the testing is a
particularly disturbing and damning example of the defense team’s dishonesty. This is not the first
instance of misrepresentation of the record by defense counsel in this case. Sanford v. Russell,
381 F. Supp. 3d 905, 922-23 (E.D. Mich. 2019) (“[T]he assertion that Russell’s falsehoods were
not made part of the record at the preliminary examination is plainly contradicted by the record of
that proceeding. Certainly there is a question of fact about whether Russell showed Sanford the
crime scene photos — Sanford says he did, Russell says he did not. But Russell’s statement that
he never showed the photos indisputably was entered into evidence and was a crucial piece of
testimony at the preliminary examination hearing. Regardless of the ultimate truth or falsity of the
statement, the assertion that Russell’s lies don’t matter because they never were presented at the
probable cause hearing brazenly misrepresents the record.”), aff’d, 815 F. App’x 856 (6th Cir.
2020). It is apparent that, rather than being dissuaded from that sort of regrettable conduct by the
Court’s previous admonishment, defense counsel has elected instead to double down.
The truth is plain and simple: There were some shoes. Those shoes were found in the
plaintiff’s home on the night of the murders. He allegedly gave them to the defendants, who were
investigating the crime, and admitted that they were his. During the interrogation, one of the
defendants (admittedly, falsely) told the plaintiff that blood had been found on the shoes.
Regardless of any other circumstance of the murders or anything else that has transpired in the
long, tortured history of this case, one fact should be obvious to anyone: those shoes had significant
evidentiary potential, because, if they were worn by the plaintiff when he allegedly shot four
people to death, then they might retain some physical trace of that violent encounter.

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The defendants, as police investigators with decades of experience, certainly immediately
recognized the inculpatory potential of those shoes in September 2007 when they first were seized.
Their lawyers in this case, as seasoned members of the defense bar well familiar with this brand
of litigation, equally well knew from the outset of this case the potential value to the defense of
such inculpatory proofs. Even the most casual fan of any police drama produced within the last
thirty years immediately would have surmised the obvious: something on those shoes might show
that the plaintiff was present when four people were gunned down. Knowing all that, and having
known it all since 2007 — or, at the least, since the very outset of this lawsuit — the defendants
now expect the Court to believe that they were “surprised” by the results of a DNA analysis of
trace evidence from the shoes that was compiled in late 2019, more than a decade after the shoes
were taken into evidence, and that it never before then had occurred to them that examination of
those shoes could yield physical evidence that might demonstrate the plaintiff’s involvement in
the murders. Put simply, the defendants’ assertion that they had no good reason to seek such
testing before late 2019 or early 2020 is either a prevarication or an admission by both the
defendants and their lawyers of inexplicable professional missteps. Either way, nothing in their
presentation plausibly excuses the failure by the defense team to make any timely effort to procure
the expert evidence that they now ask for leave to develop.
The defendants have offered no plausible, truthful explanation why the expert evidence
that they now seek could not have been developed within the ample period that was allowed for
discovery in this case. They have pointed to no credible factual basis to justify their failure to
make any effort to develop the evidence they say they need within the time that was allowed. The
prejudice to the plaintiff that would result from rebooting the entire expert discovery process at
this late stage of this 2017 case is readily apparent and would provoke even further delay in the

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proceedings than already has been caused by defense counsels’ conduct. The defendants have not
demonstrated good cause for the scheduling relief that they seek, and they have made no effort to
show that their discovery failures were either substantially justified or harmless.
III.
The plaintiff argues that the defendants should be sanctioned under 28 U.S.C. § 1927 for
vexatiously multiplying the proceedings when they withheld from this Court and the court of
appeals, and concealed from plaintiff’s counsel, documents that, when finally they were disclosed,
demonstrated the false basis of the defendants’ request for more expert discovery. Those
documents include the MSP lab report showing that there was “no blood” on the outside of the
blue and white shoes. That report was not disclosed by the defense until after their motion to
appoint a DNA expert had been filed, in which they implied that the “reddish/brown substance”
on the outside of the shoes is or might be blood. The plaintiff asserts that the blood test result was
not disclosed to plaintiff’s counsel until May 28, 2019, more than four months after the defense
received it from the MSP.
The plaintiff also points to the record of correspondence by defense counsel with the MSP,
Wayne County prosecutor, and Cybergenetics, which plaintiff’s counsel says was not disclosed by
the defense until May 28, 2020, more than two months after the “case packet” comprising the full
results of the Cybergentics DNA analysis and correspondence about the testing apparently was
compiled and delivered to defense counsel.
The plaintiff also cites the repeated claims by the defense team — before this Court and on
appeal — of their urgent need to procure “further evidence” of the plaintiff’s guilt, which were
supported by supposed “new evidence” of a DNA match with a victim on the blue and white

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sneakers, which the defendants presented as having been only recently uncovered by the MSP’s
independent “ongoing investigation” of the murders.
The plaintiff argues that the deliberate obfuscation of all the above cited documents was
intended by the defense to bolster its position in seeking a further extension of expert discovery,
which twice previously had been denied by the Court, with the obvious goal of procuring a further
delay of the trial in this case. Notwithstanding the extensive presentation on the history of
questionable practice by the defense, the plaintiff seeks only modest sanctions consisting of an
“award[] [of] the costs and fees incurred by Plaintiff’s counsel as a result of defense counsel’s
misconduct.”
The defendants respond that they had no obligation under the Federal Rules of Civil
Procedure to disclose documents that were obtained by counsel, which never were in the
defendants’ personal possession, custody, or control, because the documents were “not
responsive” to the plaintiff’s discovery requests, as formally stated. They also contend that the
proceedings have not been “vexatiously multiplied” by the defendants’ conduct, and sanctions
would be inappropriate because defense counsel did not act in “bad faith.”
“[T]he Federal Rules of Civil Procedure provide that a district court may order a party to
pay attorney’s fees ‘caused by’ discovery misconduct, Rule 37(b)(2)(C), or ‘directly resulting
from’ misrepresentations in pleadings, motions, and other papers, Rule 11(c)(4). And under 28
U.S.C. § 1927, a court may require an attorney who unreasonably multiplies proceedings to pay
attorney’s fees incurred ‘because of’ that misconduct.” Goodyear Tire & Rubber Co. v. Haeger,
--- U.S. ---, 137 S. Ct. 1178, 1186 n.5 (2017). “Federal Rule of Civil Procedure 26(g) requires an
attorney or the party personally to certify that discovery responses and objections are supported by
nonfrivolous argument and are not aimed to harass, cause delay, or drive up litigation costs. The

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rule requires a court to impose sanctions for any violation without ‘substantial justification.’”
Jones v. Illinois Cent. R. Co., 617 F.3d 843, 854 (6th Cir. 2010) (quoting Fed. R. Civ. P. 26(g)).
“Reasonable attorney’s fees and expenses are available under Rule 16(f), Rule 26(g), Rule 37(b),
and Rule 37(d)” for various species of discovery misconduct. Laukus v. Rio Brands, Inc., 292
F.R.D. 485, 514 (N.D. Ohio 2013). Rule 37(b)(2)(C) authorizes the Court to award reasonable
expenses, including attorney’s fees, “caused by the failure” properly to respond to discovery
requests, “‘unless the failure was substantially justified or other circumstances make an award of
expenses unjust.’”
“Federal courts [also] possess certain ‘inherent powers,’ not conferred by rule or statute,
‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’”
Goodyear, 137 S. Ct. at 1186 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962)).
“That authority includes ‘the ability to fashion an appropriate sanction for conduct which abuses
the judicial process.’” Ibid. “[O]ne permissible sanction is an ‘assessment of attorney’s fees’ . . .
instructing a party that has acted in bad faith to reimburse legal fees and costs incurred by the other
side.” Ibid. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991)). However, the
Supreme Court “has made clear that such a sanction, when imposed pursuant to civil procedures,
must be compensatory rather than punitive in nature.” Ibid. “That means, pretty much by
definition, that the court can shift only those attorney’s fees incurred because of the misconduct at
issue. . . . Hence the need for a court, when using its inherent sanctioning authority (and civil
procedures), to establish a causal link — between the litigant’s misbehavior and legal fees paid by
the opposing party.” Ibid. Thus, “[t]he complaining party . . . may recover ‘only the portion of
his fees that he would not have paid but for’ the misconduct.” Id. at 1187 (quoting Fox v. Vice,
563 U.S. 826, 836 (2011)).

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It is well settled, by decisions that the defendants themselves principally cite, that where a
party or its counsel “needlessly increase[] the costs of litigation [by] increasing the work on the
other party without advancing the litigation . . . sanctions [are] justified under § 1927, the court's
inherent authority, or both.” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d
642, 647 (6th Cir. 2006). Based on the record discussed above, there is plain and undisputed
evidence that defense counsel needlessly increased the legal expenses incurred by the plaintiff,
without advancing this litigation, both by the filing of the defendants’ fourth request to extend
expert discovery, and by deceptively concealing from the Court the facts that expose the false
premise behind that request.

Defendants’ counsel has offered no credible excuse for that

unfortunate and dilatory conduct.
Defense counsels’ argument that he had no obligation to disclose lab results from the MSP
indicating that there was “no blood” on the shoes relies on a pedantic misconstruction of the
plaintiff’s Rule 34 discovery demands, which defense counsel believes were directed only to those
papers within the personal custody or control of their clients, not documents that separately were
obtained by counsel. But that position ignores the much more serious concealment here, which
was the deliberate omission from all of the defendants’ papers of both the blood test results and
the entire record of correspondence evidencing that the 2019 and 2020 re-analysis of the trace
evidence on the shoes was instigated, pursued, and paid for by the defense team in this case. Those
wholesale obfuscations of the record quite apparently were undertaken with the goal of misleading
the Court into endorsing a defense request to allow further discovery, which was premised entirely
on supposedly “new evidence” that arose “out of the blue” due to an independent “ongoing
investigation” of the murders by the Michigan State Police.

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In fact, it is apparent from the undisputed record discussed above that (1) in January 2019
the defense team had evidence that severely undermined their implication that the substance on
the shoes is or may be blood, and (2) in mid-March 2020 the defense team also had in hand a
record of the thoroughly documented history of correspondence between defense counsel and the
MSP and Cybergenetics, which (a) was not produced to plaintiff’s counsel until two months later,
(b) entirely was omitted from the defendants’ papers, and (c) plainly proves that the supposed “new
evidence” was the product of an expert examination that was prompted, pursued, and paid for by
the defense in this case, well after the disclosure deadlines had expired. The withholding of those
records and the omission of them from the defendants’ motion papers plainly was a calculated
deception to advance the defendants’ fourth effort to secure a discovery extension, after all of their
prior efforts had failed.
Notably, as discussed above, this is not a first offense of a misrepresentation of the record
by defendants’ counsel in this case. The defendants’ attorneys previously misrepresented the
factual record in an attempt to bolster the arguments raised in their motion for summary judgment.
See Sanford, 381 F. Supp. 3d at 922-23 (opinion denying defense motion for summary judgment).
Rather than taking that warning as an admonishment against repetition of such questionable
practice, defendants’ counsel instead opted for more of the same, and undertook even more serious
misrepresentations, in pursing their discovery motion.
The record also documents prior instances of the defendants’ litigation strategy that plainly
has been calculated, time and again, to procure delay for the sake of delay in these proceedings.
The present discovery motion is only the most recent example. The defendants previously raised
again and again, forcing the plaintiff’s counsel to brief, again and again, and the Court to rule on,
again and again, the same frivolous legal and factual defenses that previously had been rejected by

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the Court. E.g., Sanford, 381 F. Supp. 3d at 924 (“The defendants’ questionable position that the
plaintiff is ‘judicially estopped’ from disputing his innocence has no foundation in the law. For
one thing, as the Court previously ruled on the application of this principle to other issues, the
plaintiff certainly did not gain any ‘advantage’ as a result of anything he did during the criminal
trial, which ended with his conviction.

Also, the state court certainly did not make any

determination on any of the principal factual issues that are before this Court; in particular, it never
was called on even to consider whether the prosecution of the plaintiff was instigated by lies and
fabrications. Moreover, the judgment of conviction was vacated by the stipulation of the parties
after evidence of the plaintiff’s innocence came to light, so it no longer has any preclusive effect
on anything, regardless of what determinations it rested upon.”). It is clear that the present
discovery motion, which obviously was calculated to secure even further delay of the proceedings,
is cut from the same cloth.
“Section 1927 sanctions are warranted when an attorney objectively ‘falls short of the
obligations owed by a member of the bar to the court and which, as a result, causes additional
expense to the opposing party.’” Red Carpet Studios, 465 F.3d at 646. “The purpose [of such
sanctions] is to deter dilatory litigation practices and to punish aggressive tactics that far exceed
zealous advocacy.”

Ibid.

There is bright a line between zealous advocacy and cheating.

Defendants’ counsel have crossed that line more than once in this case. The frivolous attempts by
defense counsel to evade the consequences of their discovery obligation breaches readily qualifies
as sanctionable under section 1927. See ibid. (“[Plaintiff’s] continuous attempts to circumvent the
district court’s injunction by prosecuting the California case literally and unnecessarily multiplied
the proceedings.”); see also Order Denying Defs.’ Mot. for Reconsideration re: Opinion Granting
Plf.’s Mot. to Strike Expert Witnesses), ECF No. 321, PageID.15891 (“The remainder of the

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motion consists of nothing more than the defendants’ futile attempts to reargue points already
addressed by the Court, or pleas for the Court simply to overlook the unexcused failures by
defendants’ counsel to abide by the discovery deadlines that were set in this matter, which, the
Court notes, are not without precedent. See Green v. City of Southfield, Michigan, 925 F.3d 281,
286 (6th Cir. 2019).”).
The defendants’ attorneys, not their clients, rightly should be ordered to pay the costs of
the contumacious conduct in this instance, which the record suggests was undertaken largely or
entirely at counsels’ own initiative. Red Carpet Studios, 465 F.3d at 646 (“A sanctioned attorney
is thus required to personally satisfy the excess costs attributable to his misconduct.”). The
sanction sought by the plaintiff is quite modest, considering the record of misbehavior that is
presented here. The plaintiff asks to recover only those cumulative costs of the litigation that were
incurred due to the obstinate refusal by defense counsel to make timely, unprompted disclosures
of the several documents discussed above. “The court’s fundamental job [when assessing the
amount of an appropriate sanction under section 1927] is to determine whether a given legal fee
. . . would or would not have been incurred in the absence of the sanctioned conduct,” but “trial
courts undertaking that task need not, and indeed should not, become green-eyeshade
accountants.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1187 (2017) (quotations
and citations omitted). “The essential goal in shifting fees is to do rough justice, not to achieve
auditing perfection.” Ibid. The expense that justly ought to be shifted here readily and roughly
may be approximated by the hours of attorney labor expended by plaintiff’s counsel in preparing
and briefing the plaintiff’s motion for sanctions and opposing the motion to extend discovery.

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IV.
The defendants’ motion to extend discovery and add witnesses, including expert witnesses,
is based on false premises and inaccurate information, and they have not shown good cause or that
their disclosure failures were harmless or substantially justified. Defense counsels’ conduct in
pursuit of those goals needlessly has increased the legal expenses incurred by the plaintiff, without
advancing this litigation.
Accordingly, it is ORDERED that the defendants’ motion to extend discovery and add
witnesses (ECF No. 352) is DENIED.
It is further ORDERED that the plaintiff’s motion for sanctions (ECF No. 338) is
GRANTED. Plaintiff’s counsel may submit a bill of costs on or before April 13, 2021, that
documents fees and expenses that are related to the defense of the motions to appoint a DNA expert
and the motion to extend discovery and add witnesses.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 30, 2021

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