Lankford v. RelaDyne, LLC
Filing
47
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SANCTIONS (Doc. 15 ). Signed by Judge Timothy S. Black on 12/4/2015. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ROGER PAUL LANKFORD,
Plaintiff,
vs.
Case No. 1:14-cv-682
Judge Timothy S. Black
RELADYNE, LLC, et al.,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SANCTIONS (Doc. 15)
This civil action is before the Court on Plaintiff’s motion for sanctions (Doc. 15)
and the parties’ responsive memoranda (Docs. 17, 18).
I.
BACKGROUND
Plaintiff Roger Paul Lankford alleges that Defendants Reladyne, LLC and Four O
Corporation discriminated against him because of a disability in violation of the
Americans with Disabilities Act (ADEA), interfered with his rights under the Family
Medical Leave Act (FMLA), and retaliated against him in violation of federal and state
law when Defendants terminated his employment in February 2014.
On December 17, 2014, Plaintiff served his requests for production of documents.
Therein, Plaintiff asked Defendants to “[p]roduce all e-mails, instant messages, online
chats, text messages, and any other electronic communication created or received by any
employee of Defendant, which name, concern or relate to Plaintiff and the reasons
surrounding Plaintiff’s termination.” (Doc. 15-1). Defendants indicated that they did not
have any materials responsive to this request. (Doc. 15-2) (“RESPONSE: None.”).
On March 24, 2015, Plaintiff took the deposition of Tony Downs, Reladyne’s
General Sales Manager and Plaintiff’s former supervisor. On May 18, 2015, Plaintiff
took the deposition of David Luke, Reladyne’s Director of Loss Prevention. Luke
testified that he had conducted an investigation into Plaintiff and had e-mailed his
investigative report to upper management. (Doc. 18-1 at 43-45). Luke’s e-mail had not
been provided in discovery.
Accordingly, Plaintiff asked Defendants to supplement the discovery and to
provide all relevant electronic communications. When the parties reached an impasse
over who would perform the search of Reladyne’s employees’ e-mails — a third party or
Reladyne’s own IT personnel — Plaintiff requested a telephone conference with the
Court to address the issue. (See May 21, 2015 Notation Order).
The Court held a discovery dispute conference on May 22, 2015. At the
conference, the Court approved Defendants’ plan to have Reladyne personnel conduct the
search and ordered Defendants to produce responsive documents accordingly. (See May
22, 2015Minute Entry and Notation Order). 1
1
The Minute Entry and Notation Order states, in relevant part: “Forthwith, Defendant shall
search for e-mail messages (including deleted and archived messages) which are responsive to
Plaintiff's requests for production. Specifically, Defendant shall search all custodians identified
by plaintiff for all search terms identified by Plaintiff. If Plaintiff would like Defendant to search
custodians or search terms beyond those already identified, he shall provide them to Defendant’s
counsel by close of business today. Defendant shall produce responsive e-mail messages to
Plaintiff on or before 5/29/15. If, after reviewing this production, Plaintiff still has reason to
believe that it is unresponsive or inaccurate, he should petition the Court for an additional
informal discovery dispute conference, at which time the Court will consider whether a third
party should be retained to conduct the search. Should either party determine that the production
warrants an extension of the discovery deadline, it should, after conferring with opposing
counsel, petition the Court for such an extension. IT IS SO ORDERED.” (Id.)
2
Following the conference, Defendants produced e-mails in which Reladyne’s employees
discussed Plaintiff’s FMLA leave and Plaintiff’s termination. (See Docs. 15-4 to 15-7).
Plaintiff re-opened Downs’s deposition to ask him questions about these e-mails.
At a subsequent status conference on June 11, 2015, the Court ordered as follows:
By agreement of the parties, and for good cause shown, the
dispositive motion deadline, final pretrial conference date, and trial
date are VACATED and RESCHEDULED as follows: Dispositive
motion deadline: 8/10/15. Final pretrial conference: 1/4/16 at 10:00
a.m. in Cincinnati Chambers, Room 815. Jury Trial in Cincinnati:
1/11/16 at 9:30 a.m. If Plaintiff wishes to move for costs associated
with discovery necessitated by the recent e-mail production, he shall
do so on or before 6/30/15. IT IS SO ORDERED.
(See June 11, 2015 Minute Entry and Notation Order) (emphasis added).
On June 30, 2015, Plaintiff filed a motion seeking all available sanctions pursuant
to Federal Rule of Civil Procedure 37, including specified attorney’s fees and costs.
(Doc. 15 at 9). 2 Specifically, Plaintiff seeks reimbursement of $5,885 in attorney’s fees,
at a rate of $275 per hour, for the following: 0.4 hours spent on correspondence related to
e-mails and production of discovery; 0.6 hours spent participating in conferences with the
Court; 2.5 hours spent reviewing discovery and preparing for Downs’s reopened
deposition; 1.2 hours spent traveling to and from Downs’s reopened deposition; 1.3 hours
spent on Downs’s re-opened deposition; 9.4 hours spent on the instant motion; and 6.0
hours spent on the reply in support of the instant motion. (Doc. 15 at 9; Doc. 18 at 7–8).
2
Plaintiff first mentioned sanctions pursuant to Federal Rule of Civil Procedure 26(g) in his
reply memorandum. (Doc. 18 at 4-6). Rule 26(g) provides that “[i]f a certification violates this
rule without substantial justification, the court, on motion or on its own, must impose an
appropriate sanction on the signer . . . .” (emphasis added). See also Chambers v. NASCO, Inc.,
501 U.S. 32 (1991) (affirming the inherent power of courts to grant sanctions sua sponte).
3
Plaintiff also seeks $165 for the court reporter’s attendance at Downs’s reopened
deposition, and $175 for the cost of the transcript for Downs’s reopened deposition.
(Doc. 18 at 8).
Plaintiff’s total recovery sought is $6,225.
II.
A.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 37
A district court has wide discretion in determining an appropriate sanction under
Rule 37. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639 (1976);
Regional Refuse Systems v. Inland Reclamation Co., 842 F.2d 150, 154 (6th Cir. 1988).
The exercise of the Court’s discretion is informed by four factors:
The first factor is whether the party’s failure to cooperate in discovery is
due to willfulness, bad faith, or fault; the second factor is whether the
adversary was prejudiced by the party’s failure to cooperate in discovery;
the third factor is whether the party was warned that failure to cooperate
could lead to the sanction; and the fourth factor in regard to a dismissal is
whether less drastic sanctions were first imposed or considered.
Doe v. Lexington-Fayette Urban County Gov’t, 407 F.3d 755, 765-766 (6th Cir. 2005).
B.
Federal Rule of Civil Procedure 26
Sanctions under Rule 26(g) are not discretionary if a district court finds that a
discovery filing was signed in violation of Rule 26. McHugh v. Olympia Entertainment,
Inc., 37 Fed. App’x 730, 741 (6th Cir. 2002). However, this mandatory provision
“extends only to whether a court must impose sanctions, not to which sanction it must
impose.” Chambers v. NASCO, Inc., 501 U.S. 32, 51 (1991) (emphasis in original). The
determination of which sanction is appropriate is left up to the discretion of the district
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court, taking into account the circumstances of the case. Martin v. LaBelle, No. 00-1157,
2001 WL 345791, at *3 (6th Cir. Mar. 27, 2001).
III.
A.
ANALYSIS
Federal Rule of Civil Procedure 37
1.
Rule 37(a)
Rule 37(a) provides for payment or apportionment of a movant’s reasonable
expenses incurred in making a motion to compel, if the motion to compel is granted or
granted in part. Fed. R. Civ. P. 37(a)(5). The motion must include a certification that the
movant has in good faith conferred or attempted to confer with the party failing to
produce discovery in an effort to obtain it without court action. Fed. R. Civ. P. 37(a)(1).
Rule 37 certifications are comprised of two components:
First is the actual certification document. The certification must accurately
and specifically convey to the court who, where, how, and when the
respective parties attempted to personally resolve the discovery dispute.
Second is the performance, which also has two elements. The moving
party performs, according to the federal rule, by certifying that he or she
has (1) in good faith (2) conferred or attempted to confer. Each of these
two subcomponents must be manifested by the facts of a particular case in
order for a certification to have efficacy and for the discovery motion to be
considered.
In re Johnson, 408 B.R. 115, 119-120 (S.D. Ohio 2009) (quoting Shuffle Master, Inc. v.
Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996)).
Plaintiff argues that, although a motion to compel was not filed in this discovery
dispute, the Court should award the expenses he incurred in extrajudicial efforts to
resolve the dispute. (Doc. 15 at 8-9). In support of his argument, Plaintiff cites J4
Promotions, Inc. v. Splash Dogs, LLC, 2010 WL 2162901 (S.D. Ohio May 25, 2010) and
5
JPMorgan Chase Bank, N.A. v. Neovi, Inc., No. 2:06-CV-0095, 2007 WL 781648 (S.D.
Ohio Mar. 12, 2007). However, in both of those cases, subsequent to the movants’
extrajudicial efforts to resolve the disputes, the movants actually filed motions to compel.
Here, Plaintiff neither filed a motion to compel, nor provided the required certification. 3
Accordingly, the Court declines to award Plaintiff’s expenses on the basis of Rule 37(a).
2.
Rule 37(d)
Like Rule 37(a) expenses, Rule 37(d) sanctions are available only if the motion for
sanctions includes a certification that the movant has in good faith conferred or attempted
to confer with the party failing to act in an effort to obtain the answer or response without
court action. Fed. R. Civ. P. 37(d)(1)(B).
Plaintiff notes in his motion that he requested that Defense counsel supplement the
original discovery, but that the parties reached an impasse. (Doc. 15 at 4-5). Such a
vague allegation is not a sufficient Rule 37 certification.
[I]n order to effectuate the underlying policy of the federal rule, a moving
party must include more than a cursory recitation that counsel have been
“unable to resolve the matter.” Counsel seeking court-facilitated discovery,
instead, must adequately set forth in the motion essential facts sufficient to
enable the court to pass a preliminary judgment on the adequacy and
sincerity of the good faith conferment between the parties. That is, a
certificate must include, inter alia, the names of the parties who conferred or
attempted to confer, the manner by which they communicated, the dispute at
issue, as well as the dates, times, and results of their discussions, if any.
In re Johnson, 408 B.R. at 120. Accordingly, sanctions under Rule 37(d) are not
3
Courts routinely deny Rule 37(a) motions for failure to include the required certification.
See, e.g., Wasserman v. Bowers, No. 5:09-CV-180, 2011 WL 2788307 (E.D. Ky. 2011); HiltonRorara v. State and Fed. Comm., Inc., No. 5:09-CV-01004, 2010 WL 148127 (N.D. Ohio 2010).
6
available. 4
B.
Federal Rule of Civil Procedure 26
By signing a discovery response, an attorney certifies that to the best of his or her
knowledge, information, and belief formed after a reasonable inquiry, the response is not
imposed for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation. Fed. R. Civ. P. 26(g)(1)(ii). The attorney’s
signature “certifies that the lawyer has made a reasonable effort to assure that the client
has provided all the information and documents available to him that are responsive to
the discovery demand.” Advisory Committee Notes to 1983 Amendments. “An attorney
has made a reasonable inquiry if the investigation undertaken by the attorney and the
conclusions drawn therefrom are reasonable under the circumstances . . . . Ultimately,
what is reasonable is a matter for the court to decide on the totality of the circumstances.”
Brown v. Tellermate Holdings Ltd., No. 2:11-CV-1122, 2014 WL 2987051, at *17 (S.D.
Ohio July 1, 2014). Rule 26(g)(3) provides that “[i]f a certification violates this rule
without substantial justification, the court, on motion or on its own, must impose an
appropriate sanction on the signer, the party on whose behalf the signer was acting, or
both. The sanction may include an order to pay the reasonable expenses, including
attorneys’ fees, caused by the violation.” While the court must impose a sanction, the
court has discretion to determine what degree of sanction is appropriate in light of the
4
Courts routinely deny Rule 37(d) motions for failure to meet the procedural requirement of
including the required certification. See, e.g., Laues-Gholston v. Mercedes-Benz, No. 14-10844,
2014 WL 9866450, at *9 (E.D. Mich. 2014); Wasserman, supra, 2011 WL 2788307, at *1.
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circumstances of the case. Martin v. LaBelle, No. 00-1157, 2001 WL 345791, at *3 (6th
Cir. Mar. 27, 2001).
Defendants admit that incomplete discovery was provided in their initial response.
(Doc. 17 at 1). Defendants provide no explanation for their failure to provide responsive
e-mails in the first instance. (See id. at 4) (referring to their conduct as a “discovery
blunder”). 5 Instead, Defendants contend that they should not be sanctioned because
“when the incompleteness was discovered, defense counsel immediately agreed to
provide the remaining documents, and set out to do so.” (Id. at 1). However, this does
not provide substantial justification for Defendants’ failure to provide responsive
documents at the outset.
The Court finds that the following attorney’s fees, at a rate of $275 per hour, 6
should be reimbursed because they were caused by the Defendants’ incomplete
discovery: 0.4 hours spent on correspondence related to e-mails and production of
discovery ($110); 0.6 hours spent on the May 22, 2015 and June 11, 2015 status
conferences ($165); and 1.3 hours spent on re-opening Downs’s deposition ($357.50).
The Court also finds that the costs for the court reporter to attend Downs’s reopened
deposition ($165) and the costs for Downs’s reopened deposition transcript ($175) were
5
Plaintiff alleges that no inquiry took place, relying on Luke’s deposition testimony that he did
not personally search his e-mail and that he was not asked by Defense counsel to do so. (Doc. 18
at 2-4). Plaintiff also notes that Luke participated in answering the interrogatories or requests for
production. (See Doc. 15 at 7).
6
Plaintiff’s counsel’s rate of $275 per hour has previously been approved by this Court as
reasonable in an employment action. See Snelling et al. v. ATC Healthcare Services, Inc. et al.,
No. 2:11-cv-983 (S.D. Ohio Aug. 27, 2014) (Order granting attorneys’ fees).
8
caused by Defendants’ violation and should be reimbursed. These attorney’s fees and
costs total $972.50.
The Court must also consider whether the attorney’s fees related to the instant
motion should be reimbursed. Defendants argue that the spirit and text of the local rules
should have prompted Plaintiff to consult with them regarding the amounts in question
prior to filing the instant motion. As the Court had ordered Plaintiff, if he so desired, to
move for costs associated with the discovery dispute on or before June 30, 2015 (see June
11, 2015 Minute Entry and Notation Order), Defendants themselves were also aware of
the potential, and Defendants likewise could have reached out to Plaintiff to negotiate
before the filing of the instant motion. Be that as it may, taking into account Defendants’
willingness to provide the additional discovery after the incompleteness of their first
response was brought to their attention, and given the possibility that Plaintiff might have
avoided the need for the instant motion if he had consulted with Defendants prior to filing
his motion, the Court finds that payment of only a portion of the attorney’s fees Plaintiff
incurred in filing his motion for sanctions is appropriate under the circumstances: to wit,
$550 for the motion (i.e., two hours) and $275 for the reply (i.e., one hour) -- $825 total.
The Court declines to order Defendants to reimburse Plaintiff for attorney’s fees
incurred for reviewing the e-mails and preparing for the reopened deposition, as such
review and preparation would have been required regardless of the timing of the
production of the e-mails. The Court also declines to order Defendants to reimburse
Plaintiff for attorney’s fees incurred for travelling to and from Downs’s reopened
deposition, because Plaintiff already had another deposition scheduled that day in
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Dayton, Ohio. Finally, the Court declines to impose any additional sum meant to punish
Defendants.
IV.
CONCLUSION
For these reasons: (1) Plaintiff’s motion for sanctions is GRANTED IN PART
and DENIED IN PART as set forth in this Order; and (2) Defendants shall reimburse
the Plaintiff the total sum of $1,797.50 for attorney’s fees and costs within 30 days of
entry of this Order.
IT IS SO ORDERED.
Date: 12/4/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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