Sherman v. Montana Department of Corrections et al
ORDER granting in part and denying in part 34 Motion for Sanctions. Referral to Magistrate terminated as directed. Signed by Magistrate Judge John Johnston on 11/19/2020. Transmitted electronically to prison for delivery to Plaintiff. (TAG)
Case 6:19-cv-00017-DLC Document 45 Filed 11/19/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MATTHEW DAVID SHERMAN,
TERRANCE JOHNSON, SGT. GRAHAM,
and REGINALD D. MICHAEL,
Pending is Plaintiff Matthew Sherman’s Motion for Sanctions and Default
Judgment & Contempt of Court in which he moves for sanctions, default
judgment, and contempt of court alleging Defendants violated the Court’s Order
compelling discovery. (Doc. 34.) Mr. Sherman argues Defendants responses were
untimely and therefore they have waived their objections to said responses.
Defendants were required to respond to Mr. Sherman’s discovery requests
on or before September 7, 2020. (Doc. 32 at 3.) Defendant Johnson’s responses
were dated September 2, 2020 and the certificate of service indicates they were
mailed to Mr. Sherman on September 3, 2020. Defendant Michael’s and
Defendant Graham’s responses were mailed September 5, 2020. Mr. Sherman has
presented evidence that Defendants responses were not mailed until September 10,
2020. (Doc. 44-1.) Defendants provide no explanation regarding why discovery
Case 6:19-cv-00017-DLC Document 45 Filed 11/19/20 Page 2 of 5
responses that were required to be served on or before September 7, 2020 were not
post-marked until September 10, 2020.1
Mr. Sherman points out that the Court issued an Order compelling
Defendants to respond to his discovery requests on August 6, 2020. (Doc. 32.) He
contends Defendants responded with responses that were full of objections and
claims of privilege. He argues the time to object and claim privilege was during
discovery or in response to Mr. Sherman’s motion to compel and that now
Defendants have waived their objections. (Doc. 34.)
The Federal Rules of Civil Procedure “provide that discovery requests must
be responded to within 30 (or in some cases 45) days.” Richmark Corp. v. Timber
Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Furthermore, “[i]t is
well established that a failure to object to discovery requests within the time
required constitutes a waiver of any objection.” Id; see also Local Rule 26.2(a)(4)
(“Failure to object to interrogatories or requests for the production of documents or
things under Fed. R. Civ. P. 33 and 34, within the time fixed by the rules, or within
the time to which the parties have agreed, constitutes a waiver of any objection.”)
Defendants did not timely respond to Mr. Sherman’s discovery requests forcing
him to file a motion to compel which the Court granted. Despite this, Defendants
September 7, 2020 was a legal holiday and therefore the responses would have been
timely if served by September 8, 2020. See Fed.R.Civ.P. 6(a)(1)(C).
Case 6:19-cv-00017-DLC Document 45 Filed 11/19/20 Page 3 of 5
continued to object to numerous discovery requests.
Federal Rule of Civil Procedure 37 permits the district court, in its
discretion, to enter a default judgment against a party who fails to comply with an
order compelling discovery. Fed. R. Civ. P. 37(b)(2)(c); Computer Task Group v.
Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). “In deciding whether a sanction of
dismissal or default for noncompliance with discovery is appropriate, the district
court must weigh five factors: ‘(1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
[opposing party]; (4) the public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic sanctions.’” Id. (Citations omitted). Before
imposing such a substantial remedy, the district court should first implement lesser
sanctions, warn the offending party of the possibility of dismissal, consider
alternative lesser sanctions and determine that they are inappropriate. Id. at 1116.
See, e.g., Leon v. IDX Systems, 464 F.3d 951, 960-61 (9th Cir. 2006) (finding
dismissal appropriate where party acted in bad faith in despoiling evidence under
five-part test). “Only ‘willfulness, bad faith, and fault’ justify terminating
sanctions.” Connecticut General Life v. Providence, 482 F.3d 1091, 1096 (9th Cir.
2007) (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)).
The Court does not find willfulness or bad faith justifying default or
contempt in this case. The Court is, however, dismayed at counsel’s discovery
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responses and responses to Mr. Sherman’s motion. For example, Defendants
refused to even provide the names of witnesses and exhibits that would testify in
support of their defenses. This is a common discovery question and Mr. Sherman
is entitled to know that information.
The Court does find that less drastic measures are available in that
Defendants will be required to provide further discovery responses without
objection. Defendant Johnson must respond to Interrogatories 2, 3, and 19 and
Request for Production 4. Any witnesses or exhibits not listed may be prohibited
from use at trial. Defendant Michael must respond to Interrogatory 7,
Interrogatory 9 (to the extent it request protocol in place for Gator vehicle
maintenance on August 16, 2016), Interrogatory 10(a) (to the extent it requests the
protocol in place on August 16, 2016), and Interrogatories 11, 12. While Mr.
Sherman has not specifically alleged a failure to discipline, he has alleged that
Defendant Michael’s lead to his injuries and that Defendant Michael failed to
ensure staff members were responsible for “safe transport” and that they were
trained in the implementation of policies. (Amended Complaint, Doc. 7 at 5.)
Defendant Michael must also respond to Interrogatory 13, but the response may be
limited to lawsuits filed against Defendant Michael for the two years preceding the
incident at issue. Defendant Graham must respond to Interrogatories 2 and 3. Any
witnesses or exhibits not listed may be prohibited from use at trial.
Case 6:19-cv-00017-DLC Document 45 Filed 11/19/20 Page 5 of 5
Based upon the foregoing, the Court issues the following:
1. Mr. Sherman’s Motion for Sanction and Default Judgment & Contempt
of Court (Doc. 34) is DENIED IN PART in that no default or contempt order will
be issued. The motion is GRANTED IN PART in Defendant Johnson must
respond to Interrogatories 2, 3, and 19 and Request for Production 4. Defendant
Michael must respond to Interrogatory 7, Interrogatory 9 (to the extent it request
protocol in place for Gator vehicle maintenance on August 16, 2016), Interrogatory
10(a) (to the extent it requests the protocol in place on August 16, 2016),
Interrogatories 11, 12, and Interrogatory 13 limited to lawsuits filed against
Defendant Michael for the two years preceding the incident at issue. Defendant
Graham must respond to Interrogatories 2 and 3.
2. The Clerk of Court is directed to terminate the referral to the
Mr. Sherman must promptly inform the Court and counsel for
Defendants of any change of address.
DATED this 19th day of November, 2020.
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