WALLACE v. GREYSTAR REAL ESTATE PARTNERS, LLC et al

Filing 122

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 4/24/2020, that Plaintiff's Third Motion to Compel Jurisdictional Discovery (Docket Entry 104 ) is GRANTED IN PART, in that: (1) on or before M ay 1, 2020, Defendant GRSSE shall serve Plaintiff with all non-privileged material (in whatever form) that any person reviewed in preparing any version of any response given to Interrogatory 8, as well as a detailed privilege log of any such material withheld based on an assertion of privilege; (2) on or before May 22, 2020, Defendant GRSSE shall make Ms. Newman, Mr. Fox, and Mr. Murphy available for depositions at any date/time reasonably selected by Plaintiff (including via remote teleconfe rence if agreed by the parties); (3) on or before June 5, 2020, Plaintiff may file a second supplemental brief of no more than ten pages regarding the Court's exercise of personal jurisdiction over Defendant GRSSE; and (4) on or before June 1 2, 2020, Defendant GRSSE and/or its counsel shall pay the reasonable expenses, including attorney's fees, incurred by Plaintiff in connection with the foregoing additional discovery and briefing, as well as litigation of the Third Motion to Compel Jurisdictional Discovery. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KATRINA WALLACE, on behalf of
herself and others similarly
situated,
Plaintiff,
v.
GREYSTAR REAL ESTATE PARTNERS,
LLC, et al.,
Defendants.

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1:18CV501

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Third Motion
to Compel Jurisdictional Discovery (Docket Entry 104).

For the

reasons that follow, the Court will grant in part the Third Motion
to Compel Jurisdictional Discovery, in that the Court will order
production of the material sought by Plaintiff and will impose
sanctions, but not to the full extent proposed by Plaintiff.
INTRODUCTION
At the inception of this case, four Defendants, including
Defendant Greystar RS SE, LLC (“GRSSE”), moved for dismissal due to
lack

of

personal

jurisdiction.

(See

Docket

Entry

40.)

On

September 11, 2019, the Court (per United States District Judge
Loretta

C.

Biggs)

authorized

Plaintiff

to

“conduct

limited

jurisdictional discovery for a period of not more than 90 DAYS from
th[at date] . . . and [to] proceed as directed by the assigned
Magistrate Judge.”

(Docket Entry 78 at 23.)

The jurisdictional

Case 1:18-cv-00501-LCB-LPA Document 122 Filed 04/24/20 Page 1 of 19

discovery authorized by Judge Biggs included interrogatories under
Federal Rule of Civil Procedure 33 (“Rule 33”) and requests for
production (“RFPs”) under Federal Rule of Civil Procedure 34 (“Rule
34”) directed to Defendant GRSSE, as well as its deposition under
Federal Rule of Civil Procedure 30(b)(6) (“Rule 30(b)(6)”).
id. at 23-24.)

(See

Among the grounds for jurisdictional discovery,

Judge Biggs expressly identified the concern that “Defendants’
complex

corporate

‘Greystar’

to

structure

refer

to

and

multiple

practice

of

different

using

the

entities

term

make

it

difficult for an outsider, like Plaintiff, to determine which
Greystar subsidiary is responsible for which actions.” (Id. at 13;
see also Docket Entry 58 at 4 (proposing jurisdictional discovery
into, among other things, “total amount of revenue generated for
each Greystar Defendant from North Carolina residents”).)
The day after entry of Judge Biggs’s foregoing Order, the
undersigned Magistrate Judge required “the parties to immediately
confer

regarding

the

90-day

jurisdictional

discovery

period

authorized [by Judge Biggs] and to file a joint notice [a week
later], EITHER confirming that [they] agreed upon all material
matters necessary for the efficient conduct of such discovery OR
summarizing any points of material disagreement.”
dated

Sept.

12,

2019.)

The

parties

timely

(Text Order

filed

a

Notice

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confirming that they had agreed on “an efficient manner in which to
conduct jurisdictional discovery.”
Plaintiff

then

promptly

(Docket Entry 81 at 1.)1

served

written

discovery,

which

included service on Defendant GRSSE of:
1) Interrogatory 1, which requested identification of “each
person

who

is

answering

these

Interrogatories,

assisting

the

answering of these Interrogatories, or who has been consulted for
purposes of answering these Interrogatories, including all persons
with

whom

[Defendant

GRSSE]

communicated

for

the

purpose

of

obtaining information responsive to these Interrogatories” (Docket
Entry 108-2 at 3 (bold font omitted));
2) Interrogatory 8, which requested a listing of Defendant
GRSSE’s “total revenue generated from North Carolina residents or
business activities” (id. at 7 (bold font omitted)); and
3) RFP 1, which requested “[a]ll documents and ESI identified,
referenced, or relied upon in [Defendant GRSSE’s] responses to
Plaintiff’s Interrogatories” (id. at 21 (bold font omitted)).
On October 25, 2019, Defendant GRSSE served Plaintiff with
discovery responses, in which:
1) as to Interrogatory 1, Defendant GRSSE identified ONLY
“Susan Newman” (id. at 3);

1

That same day, three Defendants, including Defendant GRSSE moved for a
stay of jurisdictional discovery (see Docket Entry 79), but Judge Biggs denied
that motion (see Docket Entry 85).

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2) as to Interrogatory 8, Defendant GRSSE objected and gave no
answer (see id. at 7); and
3) as to RFP 1, Defendant GRSSE objected and did not agree to
produce any documents (see id. at 21).
On November 1, 2019, Plaintiff filed a Motion to Compel
Jurisdictional Discovery.

(See Docket Entry 87.)

The undersigned

Magistrate Judge shortened the response time and set a hearing for
November 13, 2019.

(See Text Order dated Nov. 4, 2019.)

At that

hearing, among other things, Defendant GRSSE “agreed to supplement
[its]

response[]

Defendant[

to

GRSSE]

R[FP]

.

.

.

1

.

to

.

.

[and]

supplement

Interrogator[y] . . . 8 . . . .”

the

[its]

Court

ordered

response[]

to

(Text Order dated Nov. 13, 2019.)

Two weeks later, Defendant GRSSE served Plaintiff with “First
Supplemental Responses,” which did not address Interrogatory 8, but
did offer additional production as to RFP 1, although not as
concerned Interrogatory 8.
11,

2019,

Supplemental

Defendant

(See Docket Entry 101-1.)

GRSSE

Responses,”

served

which

did

Plaintiff
not

offer

On December

with
any

“Second

additional

production as to RFP 1, but which did address Interrogatory 8 by
identifying

(in

chart

form)

revenue from North Carolina.”

certain

“property

management

fee

(Docket Entry 112-1 at 2.)

On December 23, 2019, Plaintiff filed her Second Motion to
Compel Jurisdictional Discovery.

(See Docket Entry 94.)

The

undersigned Magistrate Judge (again) shortened the response time

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(see Text Order dated Dec. 26, 2019) and (again) set a hearing (see
Text

Order

dated

Jan.

8,

2020).

At

that

hearing,

the

“jurisdictional discovery deadline [was] extended until 2/28/2020”
(Minute Entry dated Jan. 15, 2020) and the undersigned Magistrate
Judge

“(A)

reconsider[ed]

in

part

[the]

Text

Order

dated

11/13/2019, (B) again grant[ed] in part and den[ied] in part
[Plaintiff’s first] Motion to Compel Jurisdictional Discovery, and
(C) grant[ed] in part and den[ied] in part [Plaintiff’s] Second
Motion to Compel Jurisdictional Discovery, all for the reasons and
in

the

manner

01/15/2020.”

stated

on

the

record

at

the

hearing

held

on

(Text Order dated Jan. 24, 2020.)

As correctly recounted by Plaintiff (based on a transcribed
recording of that hearing (see Docket Entry 108-1)):
Throughout the hearing . . ., [Defendant GRSSE’s]
attorney represented that only Susan Newman answered the
Interrogatories on behalf of [Defendant GRSSE].
The
Court specifically asked whether Ms. Newman answered
Interrogatory No. 8 on behalf of [Defendant GRSSE], and
counsel for [Defendant GRSSE] confirmed she did. Based
upon this representation, the Court ordered [Defendant
GRSSE] to “produce the documents or ESI that Ms. Newman
relied on in coming up with the response that she gave to
interrogatory number eight.”
(Docket Entry 105 at 3 (internal citations omitted) (emphasis
added).)
On February 5, 2020, Defendant GRSSE served Plaintiff with
“Amended and Supplemental Responses,” which:
1) as to Interrogatory 8, omits (without explanation) the
chart contained in Defendant GRSSE’s Second Supplemental Response
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as to Interrogatory 8 and directs Plaintiff to “[s]ee RSSE 00319”
(Docket Entry 108-4 at 3); and
2) as to RFP 1, similarly refers to “RSSE 00319” as the only
document and/or ESI “relied upon in supplemental response to
Interrogatory

[]

8”

(id.

at

4;

see

also

Docket

Entry

112-2

(redacted version of “RSSE 00319”)).2
After the undersigned Magistrate Judge (again) extended the
jurisdictional discovery deadline (to March 29, 2020, due to the
illness of Defendant GRSSE’s primary counsel) (see Text Order dated
Feb. 19, 2020), Ms. Newman appeared for Defendant GRSSE’s Rule
30(b)(6) deposition on March 11, 2020.

(See Docket Entry 112-3.)

During that deposition (as accurately summarized by Plaintiff), Ms.
Newman (A) “made repeated references to documents and/or ESI that
she reviewed in order to provide the answer in [Defendant GRSSE’s]
Second Supplemental Response to Interrogatory [] 8” (Docket Entry
105 at 4 (citing Docket Entry 112-3 at 24-25))3 and (B) “testified
the document produced in [Defendant GRSSE’s] Amended Supplemental
Response, RSSE00319, was not the document(s) or ESI she reviewed
when answering the Second Supplemental Response to Interrogatory []
8” (Docket Entry 105 at 5 (citing Docket Entry 112-3 at 26)).

2
After reviewing the sealed versions of
with Plaintiff that “[t]he revenue amounts
different than those listed in [the chart set
Supplemental [R]esponse” (Docket Entry 105 at

both documents, the Court concurs
in [RSSE 00319] are materially
out in Defendant GRSSE’s] Second
4).

3

Pin citations to the deposition transcript refer to the page number that
appears in the footer appended to that document upon filing in the CM/ECF system.

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Following receipt of an expedited transcript of Ms. Newman’s
Rule 30(b)(6) deposition and a meet-and-confer with Defendant GRSSE
(see Docket Entry 105 at 6), Plaintiff promptly filed her Third
Motion

to

Compel

Jurisdictional

Discovery,

seeking

“an

order

compelling [Defendant GRSSE] to produce all documents and/or ESI
identified,

referenced,

or

relied

upon

in

responding

to

Interrogatory [] 8, and to award sanctions” (Docket Entry 104 at
1).

Plaintiff’s supporting memorandum elaborates that she seeks

sanctions in the form of an order (A) effectively declaring “that
this Court has personal jurisdiction over” Defendant GRSSE, and
(B) requiring Defendant GRSSE, “its counsel, or both [to] pay
Plaintiff’s reasonable expenses and attorneys’ fees incurred as a
result of [Defendant GRSSE’s] failure to follow the Court’s order
and produce what was relied upon to answer Interrogatory [] 8.”
(Docket Entry 105 at 13.)4
opposition.

Defendant GRSSE thereafter responded in

(See Docket Entry 111.)

In doing so and notwithstanding (A) Defendant GRSSE – in
response to Interrogatory 1 and to the Court’s inquiries at the
hearing on January 15, 2020 – having identified Ms. Newman as the
ONLY person who participated in answering Interrogatory 8, and
(B) Ms. Newman having testified on behalf of Defendant GRSSE that

4

Because of the significance of the allegations against Defendant GRSSE
and of the sanctions sought, the undersigned Magistrate Judge elected not to
shorten the response deadline. Further, because of the present public health
situation (and the limitations of remote teleconference alternatives to in person
proceedings), the undersigned Magistrate Judge chose not to set a hearing.

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she reviewed documents to do so, Defendant GRSSE asserted (1) that
“Jason Fox, Managing Director of Corporate Accounting, provided the
response to Interrogatory [] 8” (id. at 3 (citing Docket Entry 1112 (“Fox Decl.”), ¶ 6)) and (2) that “[Ms.] Newman was not involved
in identifying, compiling, reviewing, or confirming any of the
information related to [Defendant GRSSE’s] revenue number provided
on December 11, 2019” (Docket Entry 111 at 3 (citing Docket Entry
111-2, ¶ 7)).

Defendant GRSSE’s Response further states that,

“[o]n December 19, 2019, [Mr.] Fox provided updated, corrected
numbers for the total revenue generated by [Defendant GRSSE]”
(Docket Entry 111 at 3 (citing Docket Entry 111-2, ¶ 9)), and that
later (with limited assistance from Ms. Newman) (see Docket Entry
111 at 3-4 (citing Docket Entry 111-1 (“Newman Decl.”), ¶ 3)),
“another member of the accounting team, Joshua Murphy, compiled the
revenue numbers again . . . and sent RSSE 00319 to [Ms.] Newman”
(Docket Entry 111 at 4 (citing Docket Entry 111-2, ¶ 11)), somehow
resulting in Ms. Newman “rel[ying] on and referenc[ing] RSSE 00319
in

[Defendant

GRSSE’s]

Amended

Supplemental

Response

to

Interrogatory [] 8” (Docket Entry 111 at 4 (citing Docket Entry
111-1, ¶ 4); see also Docket Entry 111 at 4 (“[Ms.] Newman gave
erroneous

testimony.

She

thought

she

had

reviewed

certain

documents to respond to Interrogatory [] 8, when in fact she had
not.” (citing Docket Entry 111-1, ¶¶ 5, 6))).

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After Plaintiff replied (see Docket Entry 113), the Clerk’s
Office referred Plaintiff’s Third Motion to Compel Jurisdictional
Discovery to the undersigned Magistrate Judge (see Docket Entry
dated Apr. 21, 2020).
DISCUSSION
Defendant GRSSE’s handling of Interrogatory 8, as well as of
Interrogatory 1 and RFP 1 (as each concerns Interrogatory 8),
implicates at least four different discovery enforcement regimes
within Federal Rule of Civil Procedure 37 (“Rule 37”). First, “[a]
party seeking discovery may move for an order compelling . . .
production . . . .

This motion may be made if

. . . a party fails

to produce documents . . . as requested under Rule 34.”

Fed. R.

Civ. P. 37(a)(3)(B); see also Fed. R. Civ. P. 37(a)(4) (“For
purposes of this subdivision (a), an . . . incomplete . . .
response must be treated as a failure to respond.”).
Second, “[i]f a party fails to provide information or identify
a witness as required by [Federal] Rule [of Civil Procedure] 26(a)
or (e), the party is not allowed to use that information or witness
to supply evidence on a motion . . ., unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Subdivision (e) of Federal Rule of Civil Procedure 26 (“Rule
26(e)”), in turn, mandates that a party “who has responded to an
interrogatory[ or RFP] . . . must supplement or correct its . . .
response . . . in a timely manner if the party learns that in some

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material respect the . . . response is incomplete or incorrect, and
if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in
writing[.]”

Fed. R. Civ. P. 26(e)(1).

“In addition to or instead

of th[e above-described] sanction,” Fed. R. Civ. P. 37(c)(1), i.e.,
loss

of

“use

[of

the]

information

or

witness”

that

a

party

“fail[ed] to provide . . . or identify . . . as required by” Rule
26(e), id., “the [C]ourt on motion and after giving an opportunity
to be heard . . . may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure . . . and may
impose other appropriate sanctions, including any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi), id.
That cross-referenced list of sanction-orders consists of:
(i) directing that the matters embraced in the order or
other designated facts be taken as established for
purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from
introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or in
part; [and]
(vi) rendering a default judgment against the disobedient
party[.]
Fed. R. Civ. P. 37(b)(2)(A).

That list, along with a seventh

sanction option, i.e., “treating as contempt of court the failure
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to obey any order except an order to submit to a physical or mental
examination,” Fed. R. Civ. P. 37(b)(2)(A)(vii), also comprise the
examples given of the “further just orders,” Fed. R. Civ. P.
37(b)(2)(A), the Court may issue in the third discovery enforcement
scenario

implicated

by

Defendant

GRSSE’s

conduct

related

to

Interrogatories 1 and 8, along with RFP 1, i.e., situations where
“a party . . . fails to obey an order to provide or permit
discovery,” id.; see also Fed. R. Civ. P. 37(b)(2)(C) (“Instead of
or in addition to the orders above, the court must order the
disobedient party, the attorney advising that party, or both to pay
the reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.”).
Fourth (and last), “the Court [may] impose sanctions where a
party or person designated under Rule 30(b)(6) fails ‘to appear
before the officer who is to take the deposition, after being
served with proper notice.’

Producing an unprepared witness is

tantamount to a failure to appear.”

United States v. Taylor, 166

F.R.D. 356, 363 (M.D.N.C. 1996) (Eliason, M.J.) (internal citation
omitted) (quoting Fed. R. Civ. P. 37(d)(1)(A)(i)), aff’d, 166
F.R.D. 367 (M.D.N.C. 1996) (Tilley, J.).

In such circumstances:

Sanctions may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi). Instead of or in addition to these
sanctions, the [C]ourt must require the party failing to
act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by
the failure, unless the failure was substantially
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justified or other
expenses unjust.

circumstances

make

an

award

of

Fed. R. Civ. P. 37(d)(3).
The record (as recited in the Introduction) reflects that
Defendant GRSSE ran afoul of all four of the foregoing discovery
enforcement regimes, requiring relief for Plaintiff, including
compelled production of additional discovery and expense-shifting.
To begin, accepting Defendant GRSSE’s account,5 Mr. Fox prepared
the response to Interrogatory 8 served on Plaintiff on December 11,
2019.

As a result, pursuant to RFP 1 (and the obligation to

supplement discovery responses under Rule 26(e)), Defendant GRSSE
bore the burden of then producing “all documents . . . relied upon”
(Docket Entry 108-2 at 21 (bold font omitted)) by Mr. Fox to
respond to Interrogatory 8.

Defendant GRSSE failed to do so.

At the same time, Rule 26(e)’s supplementation mandate also
imposed on Defendant GRSSE the responsibility to promptly correct
its prior response to Interrogatory 1, which erroneously identified
Ms. Newman as the only person who played any part in answering any
of Plaintiff’s Interrogatories, including Interrogatory 8, when (in
Defendant GRSSE’s view) Mr. Fox actually answered Interrogatory 8.
Again, Defendant GRSSE failed to do so.

Moreover, Defendant GRSSE

5
Because (as the Introduction shows) Defendant GRSSE did not properly
identify Mr. Fox as a person involved in this case (i.e., a potential witness),
the Court likely could decline to consider his declaration for purposes of
resolving Plaintiff’s Third Motion to Compel Jurisdictional Discovery, see Fed.
R. Civ. P. 37(c)(1); however, because (as set out in the Discussion that follows
above) Mr. Fox’s averments (even if credited) do not exculpate Defendant GRSSE,
the Court need not consider that issue further at this time.

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exacerbated that error by continuing to insist that only Ms. Newman
participated in preparation of the response to Interrogatory 8,
when the Court directly questioned its counsel about that matter at
the hearing on January 15, 2020, thereby distorting the Court’s
disposition of Plaintiff’s (first) Motion to Compel Jurisdictional
Discovery and Second Motion to Compel Jurisdictional Discovery.
Defendant GRSSE once more violated its duty to supplement
under Rule 26(e), when (on February 5, 2020) it served its Amended
and Supplemental Response to Interrogatory 8, but (A) failed to
correct its response to Interrogatory 1 to report the role of Mr.
Fox and Mr. Murphy (thereby maintaining the false representation
that only Ms. Newman partook in answering Interrogatory 8), and
(B) failed to produce (as required by RFP 1) the materials that Mr.
Fox gathered on December 19, 2019, and that Ms. Newman and Mr.
Murphy marshaled in January 2020, to alter Defendant GRSSE’s
response to Interrogatory 8 on February 5, 2020.

That latter

failure also contravened the Court’s order of January 15, 2020,
which directed Defendant GRSSE to produce the documents and ESI
underlying the response to Interrogatory 8.
Defendant GRSSE’s attempt to avoid accountability for such
non-compliance (1) by pointing to the order’s focus on materials on
which (only) Ms. Newman relied and (2) by contending that she
relied on nothing but RSSE 00319 (see Docket Entry 111 at 7-8)
“constitute[s] nothing more than blatant sophistry of the worst

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nature,” Huddleston v. Commissioner of Internal Revenue, No. 9440667, 50 F.3d 1033 (table), 1995 WL 136253, at *1 (5th Cir. Mar.
13, 1995) (unpublished).

Defendant GRSSE told the Court that Ms.

Newman alone took part in answering Interrogatory 8, so the Court
told

Defendant

GRSSE

to

comply

with

RFP

1’s

demand

for

the

materials consulted by Ms. Newman (as the sole person supposedly
involved) in answering Interrogatory 8 for Defendant GRSSE.

Ms.

Newman’s name (as opposed to Mr. Fox’s name and/or Mr. Murphy’s
name) appears in the order at issue entirely due to Defendant
GRSSE’s misrepresentation. “Neither in criminal nor in civil cases
will the law allow a person to take advantage of his own wrong.
And yet this would be precisely what [Defendant GRSSE] would do if
it[s approach was] permitted . . . .”

Diaz v. United States, 223

U.S. 442, 458 (1912) (internal quotation marks omitted).
Lastly, Defendant GRSSE designated Ms. Newman to appear for
its Rule 30(b)(6) deposition, but now acknowledges that she could
not accurately

answer

preparation

Defendant

of

basic

questions

GRSSE’s

about

response

her

to

role

in

the

Interrogatory

8

(despite the fact that Defendant GRSSE then continued to perpetuate
the false notion that Ms. Newman alone answered Interrogatory 8).
That “[p]roduc[tion of] an unprepared witness [wa]s tantamount to
a failure to appear,” Taylor, 166 F.R.D. at 363.
These discovery violations by Defendant GRSSE, individually
and collectively, entitle Plaintiff to relief and necessitate

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sanctions, as provided by the above-quoted Rules.
part, the judiciary runs on the honor system.
attorneys and parties will play fair.”
F.R.D. 603, 621 (D.N.M. 2012).

“For the most

[Judges] trust that

Tom v. S.B., Inc., 280

Consistent with that perspective,

although (as stated on the record at the hearing on Plaintiff’s
(first) Motion to Compel Jurisdictional Discovery on November 13,
2019) the undersigned Magistrate Judge concluded that Defendant
GRSSE had taken unreasonable positions in responding to many of
Plaintiff’s discovery requests, the undersigned Magistrate Judge
gave Defendant GRSSE the benefit of the doubt, allowed the parties
an opportunity to work out their differences, and resolved the
remaining

disputes

without

ordering

any

expense-shifting.

Similarly, at the hearing on Plaintiff’s Second Motion to Compel
Jurisdictional Discovery on January 15, 2020 (again as stated on
the record), the undersigned Magistrate Judge chose not to fault
Defendant GRSSE for its highly restrictive interpretation of the
orders given on November 13, 2019, and once more imposed no
expense-shifting after ruling on disputed issues.
The
outcome.

present

circumstances,

however,

demand

a

different

In reaching that conclusion, the undersigned Magistrate

Judge takes note that:
The Fourth Circuit has developed a four-part test for a
district court to use when determining what [if any]
sanctions to impose under Rule 37. The [district] court
must determine (1) whether the non-complying party acted
in bad faith, (2) the amount of prejudice that non[]compliance caused the adversary, (3) the need for
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deterrence of the particular sort of non-compliance, and
(4) whether less drastic sanctions would have been
effective.
Anderson v. Foundation for Advancement, Educ. & Emp’t of Am.
Indians, 155 F.3d 500, 504 (4th Cir. 1998).
In

this

case,

those

factors

warrant

strong,

remedial

sanctions, as the Fourth Circuit recognized in discussing another
case with many similar features:
[The plaintiff] failed to respond [properly to discovery
requests] . . . . When [the plaintiff was] . . . ordered
to complete the [responses] in a certain, timely manner,
[he] failed to comply. The answers ultimately provided
to [the defendant] reveal a lack of investigation . . .
[and] some of the answers provided by [the plaintiff
were] manifestly false.
This conduct constitutes bad
faith.
The information sought by [the defendant w]as clearly
material . . . .
Further, deterrence of the type of
conduct engaged in by [the plaintiff] and counsel was
plainly warranted. They have been dilatory throughout
the discovery process in providing the most basic
information; counsel either failed to investigate or
ignored the facts [at issue] . . .; and, as the
[undersigned M]agistrate [J]udge [has] found, several
answers which were provided in responses [were] totally
contradicted [by record evidence] . . . .
Towns v. Morris, No. 93-1295, 50 F.3d 8 (table), 1995 WL 120687, at
*3 (4th Cir. Mar. 22, 1995) (unpublished).
In Towns, the district court imposed (and the Fourth Circuit
affirmed) the harshest sanction available against a plaintiff,
i.e., dismissal.

See id.

Plaintiff would have the Court impose

something akin to a dispositive sanction upon Defendant GRSSE here,
i.e., the effective denial of its personal jurisdiction defense.

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One

distinction

between

this

case

and

Towns

convinces

the

undersigned Magistrate Judge to reject that option; before ordering
a dispositive sanction, the district court monetarily sanctioned
the plaintiff in Towns, leading the Fourth Circuit to conclude that
“it [wa]s clear that less drastic alternatives were not available
–

the

magistrate

judge’s

previous

appreciable corrective effect.”

monetary

sanction

had

no

Id.

Given the absence of any prior sanctions (or even remedial
expense-shifting)

against

Defendant

GRSSE,

the

undersigned

Magistrate Judge denies Plaintiff’s request for an order precluding
Defendant GRSSE from continuing to contest the issue of personal
jurisdiction.

Instead, the undersigned Magistrate Judge (A) will

compel Defendant GRSSE to produce additional discovery material and
to submit to further depositions, (B) will permit Plaintiff to file
a second supplemental brief regarding personal jurisdiction, and
(C)

will

require

Defendant

GRSSE

to

pay

all

of

Plaintiff’s

reasonable expenses, including attorneys’ fees arising from that
additional discovery and briefing, as well as from litigation of
the Third Motion to Compel Jurisdictional Discovery.

Under the

circumstances of this case, such action will remedy prejudice to
Plaintiff and will serve the other “purpose[s] of Rule 37 [i.e.]
. . . to punish deliberate noncompliance with the federal rules of
discovery and to deter such conduct in the future.”

Zornes v.

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Case 1:18-cv-00501-LCB-LPA Document 122 Filed 04/24/20 Page 17 of 19

Specialty Indus., Inc., No. 97–2337, 166 F.3d 1212 (table), 1998 WL
886997, at *9 (4th Cir. Dec. 21, 1998) (unpublished).
CONCLUSION
Defendant GRSSE (A) failed to produce (and to supplement)
materials responsive to RFP 1 (as concerns Interrogatory 8),
(B)

failed

to

timely

supplement/correct

its

response

to

Interrogatory 1 (as it relates to Interrogatory 8), (C) failed to
comply with the Court’s order to produce materials in connection
with RFP 1 and Interrogatory 8, and (D) failed to present a
properly prepared Rule 30(b)(6) witness.
IT IS THEREFORE ORDERED that Plaintiff’s Third Motion to
Compel Jurisdictional Discovery (Docket Entry 104) is GRANTED IN
PART, in that:
(1) on or before May 1, 2020, Defendant GRSSE shall serve
Plaintiff with all non-privileged material (in whatever form) that
any person reviewed in preparing any version of any response given
to Interrogatory 8, as well as a detailed privilege log of any such
material withheld based on an assertion of privilege;
(2) on or before May 22, 2020, Defendant GRSSE shall make Ms.
Newman, Mr. Fox, and Mr. Murphy available for depositions at any
date/time reasonably selected by Plaintiff (including via remote
teleconference if agreed by the parties);

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Case 1:18-cv-00501-LCB-LPA Document 122 Filed 04/24/20 Page 18 of 19

(3) on or before June 5, 2020, Plaintiff may file a second
supplemental brief of no more than ten pages regarding the Court’s
exercise of personal jurisdiction over Defendant GRSSE; and
(4) on or before June 12, 2020, Defendant GRSSE and/or its
counsel shall pay the reasonable expenses, including attorney’s
fees, incurred by Plaintiff in connection with the foregoing
additional discovery and briefing, as well as litigation of the
Third Motion to Compel Jurisdictional Discovery.6
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 24, 2020

6
The parties should work cooperatively to address any disputes about the
amount of Plaintiff’s reasonable expenses, but, if they cannot reach an agreement
about that issue, Defendant GRSSE and/or its counsel may move for a stay of the
payment deadline, setting out therein any matters of dispute.

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