On Demand Direct Response, LLC et al v. McCart-Pollak

Filing 355

ORDER - The Court CAUTIONS Mr. Harrington and his counsel that they must comply with all applicable rules and all orders moving forward. FAILURE TO DO SO MAY RESULT IN THE IMPOSITION OF SANCTIONS, UP TO AND INCLUDING CASE-DISPOSITIVE SA NCTIONS. As this is the second such warning, see Docket No. 310 at 5, Mr. Harrington and his counsel should expect the imposition of sanctions for future violations. In all other respects, the order to show cause is DISCHARGED. Signed by Magistrate Judge Nancy J. Koppe on 5/15/2018. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 ON DEMAND DIRECT RESPONSE, LLC, et al., Case No.: 2:15-cv-01576-MMD-NJK Plaintiff(s), 12 13 v. 14 Order SHANA LEE MCCART-POLLAK, 15 16 Defendant(s). Pending before the Court is an order for Third-Party Defendant Kevin Harrington and his 17 attorneys (Michael Feder and Gabriel Blumberg) to show cause why they should not be sanctioned 18 for failing to comply with the Court’s previous discovery order. Docket No. 345. Mr. Harrington 19 (through his attorneys) initially responded to document requests with a boilerplate recitation that 20 he found no responsive documents after his records were searched and his files were reviewed. 21 See Docket No. 310. The Court held that such a response violated Rule 34(a)(1) of the Federal 22 Rules of Civil Procedure, which requires the responding party to come forward with an explanation 23 of the search conducted with sufficient specificity to allow the Court to determine whether a 24 reasonable inquiry was made. Docket No. 310 at 3-4. The Court ordered supplemental responses. 25 Id. at 4. Mr. Harrington’s supplemental responses marginally altered his original responses by 26 indicating that he “searched and reviewed physical files in his home office as well as electronic files” 27 to no avail, but that he reserved the right to supplement to provide responsive documents in the future. 28 See Docket No. 345 at 2. Given the obvious deficiency with the supplemental responses, the Court 1 1 ordered that further supplements be provided, and ordered Mr. Harrington and his attorneys to show 2 cause why they should not be sanctioned in a fine for violating the Court’s previous order. Id. at 3-5. 3 The response to that order to show cause indicates in general terms that Mr. Harrington has 4 been participating in discovery in good faith and that his counsel believed the supplemental responses 5 were sufficient. See Docket No. 353. The response misses the mark. 1 For example, it indicates that 6 “[Mr.] Harrington and his counsel should not be sanctioned for lacking responsive documents and 7 performing a search for responsive documents despite knowing none would be located.” Docket No. 8 353 at 3 n.3. Such an assertion is ridiculous as that is obviously not the issue before the Court. 2 The 9 Court has made clear on multiple occasions that a party is not entitled to simply assert that he looked 10 for responsive documents and did not find any; he must make a reasonable inquiry to find responsive 11 documents and must provide a detailed explanation of that inquiry so the Court can judge whether it 12 was sufficient due diligence. Docket No. 310 at 3-4; Docket No. 345 at 2; see also Docket No. 289 at 13 3-4. This is not a novel proposition, but rather reflects well-settled law. See, e.g., Rogers v. Giurbino, 14 288 F.R.D. 469, 485 (S.D. Cal. 2012); A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 15 (C.D. Cal. 2006). Mr. Harrington (through his counsel) failed to provide a detailed description even 16 after being ordered by the Court to do so, and the response to the order to show cause lacks a plausible 17 explanation as to how Mr. Harrington and his counsel could have reasonably believed they were 18 complying with the Court’s order. Instead, Mr. Harrington and his counsel waited until fines were on 19 the table for violating the Court’s order to file a belated declaration providing a more detailed recitation 20 of the search undertaken. See Docket No. 353-2 at ¶¶ 8-9. 3 21 22 23 1 The order to show cause was premised on two rules, Rule 37(b)(2)(A) and Rule 26(g). The response to the order to show cause addresses only the latter rule. See Docket No. 353 at 3. 2 What is more, counsel clearly knows that is not the issue before the Court because he has 24 attached to the response to the order to show cause a declaration providing a more detailed recitation of the search undertaken. See Docket No. 353-2 at ¶¶ 8-9. Counsel’s assertion that the 25 Court is considering imposing sanctions because a party lacks responsive documents is, at best, disingenuous. 26 3 Concurrently with the filing of the response to the order to show cause, Mr. Harrington 27 was required to provide further supplemental discovery responses to Ms. McCart-Pollak. Docket No. 345 at 3-4. The Court expresses no opinion herein as to whether the latest search description 28 provided in response to the order to show cause is sufficient. 2 1 Given the circumstances, the Court would be within its discretion to impose a fine. See, e.g., 2 Fed. R. Civ. P. 37(b)(2)(A) (courts may issue “just orders” for disobedience with a discovery order). 3 The Court takes Mr. Harrington and his counsel at their word that they are attempting to comply with 4 the Court’s orders, and the Court expects them to strictly comply with their discovery obligations 5 moving forward. As such, the Court CAUTIONS Mr. Harrington and his counsel that they must 6 comply with all applicable rules and all orders moving forward. FAILURE TO DO SO MAY 7 RESULT IN THE IMPOSITION OF SANCTIONS, UP TO AND INCLUDING CASE8 DISPOSITIVE SANCTIONS. As this is the second such warning, see Docket No. 310 at 5, Mr. 9 Harrington and his counsel should expect the imposition of sanctions for future violations. 10 In all other respects, the order to show cause is DISCHARGED. 11 IT IS SO ORDERED. 12 Dated: May 15, 2018 ______________________________ Nancy J. Koppe United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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