Ruiz-Bueno, III et al v. Scott et al

Filing 179

OPINION AND ORDER denying 142 Motion for Sanctions & denying 143 Motion for Attorney Fees. Signed by Magistrate Judge Terence P Kemp on 5/1/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John C. Ruiz-Bueno, III, et al.,:
Case No. 2:12-cv-0809
Plaintiffs,

:
JUDGE GREGORY L. FROST

v.

:
Magistrate Judge Kemp

Zach Scott, et al.,

:

Defendants.

:
OPINION AND ORDER

This wrongful death case is before the Court to resolve two
motions for sanctions filed by Plaintiffs, both related to
discovery orders issued by the Court.

The first (Doc. 142) seeks

sanctions under Rule 11 based on certain defendants’ opposition
to answering interrogatories about the way in which they
attempted to locate documents responsive to earlier discovery
requests.

The Plaintiffs also filed a motion to compel answers

to those interrogatories, a motion which the Court granted on
November 15, 2013, see Doc. 139, but without imposing sanctions
under Fed.R.Civ.P. 37.

The second (Doc. 143) seeks sanctions

under Fed.R.Civ.P. 37(a)(5) based on the same issue.

For the

following reasons, the Court denies both motions.
I.

Introduction

The Court will not review in any depth the discovery order
at issue, because that order - which can also be found at
Ruiz-Bueno v. Scott, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013) lays out the issues clearly and speaks for itself as to how and
why the Court resolved them in Plaintiffs’ favor.

The Court

held, in essence, that given the information already of record
about how Defendants had not made any organized or directed
effort to determine if they possessed emails relevant to the

issues in this case, it would be appropriate to allow Plaintiffs
to conduct discovery about Defendants’ search methods.

In so

holding, the Court acknowledged that “not every case will justify
directing counsel or a party to provide ‘discovery about
discovery,’” see id. at *4, but concluded that the large number
of defendants whose email records should have been searched, the
small number of documents produced, and counsel’s unwillingness
to share any information about why that occurred, justified such
discovery in this case.
According to exhibits attached to Plaintiff’s first
sanctions motion, when Plaintiffs reviewed the responses to their
interrogatories about how Defendants did their email search Defendants objected to both as irrelevant - Plaintiffs sent a
“safe harbor” letter under Rule 11 asking for supplemental
responses in order to stave off a motion for sanctions.
Defendants declined to change their position.

However,

As noted,

Defendants were then ordered to (and did) supplement their
responses as a result of the Court’s granting of the motion to
compel.

The two motions for sanctions were filed shortly

thereafter.
II.

Rule 11

Plaintiffs, in their two motions, seek identical relief
under Rule 11 and Rule 37.

Defendants, in opposing the Rule 11

motion, point out that Rule 11(d) provides that Rule 11 “does not
apply to disclosures and discovery requests, responses,
objections, and motions under Rule 26 through 37.”

Plaintiffs

respond that they are willing to have the Court consider the
matter based on the Rule 37 motion, so the Court will not discuss
Rule 11 further.
III.

Rule 37

Rule 37(a)(5) initially directs the Court to award sanctions
when granting a motion to compel discovery: “If the motion is
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granted--or if the disclosure or requested discovery is provided
after the motion was filed--the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees.”
However, the mandatory obligation set forth by that language is
tempered by several subsequent subparts to the Rule; among other
things, the Court “must not” award payment of expenses if “(ii)
the opposing party's nondisclosure, response, or objection was
substantially justified; or (iii) other circumstances make an
award of expenses unjust.”

The question here is whether

sanctions should be awarded.

This is a matter about which the

Court possesses substantial discretion.

See, e.g., In re

Sulfuric Acid Antitrust Litigation, 231 F.R.D. 320, 330 (N.D.
Ill. 2005).
The Court understands Defendants’ position to be that their
opposition both to answering these interrogatories and to the
motion to compel was substantially justified.
which can legitimately be debated.

That is a matter

Their flat refusal to provide

any information about their search methods could be viewed, in
this era of heightened focus on the need for parties to work
cooperatively through the many issues created by the electronic
creation, storage, and retrieval of electronically-stored
information, as, at worst, obstructionism, or, more charitably,
as failing to engage in a good faith effort to insure the smooth
progress of discovery.

Their view of this issue was, and appears

to continue to be, overly simplistic.

But the Court does not, in

light of the totality of the circumstances of this case - which
include a welcome change of direction with respect to discovery
matters over the past several months - view it as willful.
Counsel was trying to protect and advance the clients’ interests,
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not simply to frustrate the discovery process.

Had the prior

pattern of discovery disputes over almost every request and
response continued, it is highly likely that the Court would
have, by now, felt the need to impose sanctions in order to get
the parties’ attention.

But that pattern has changed.

The

parties are to be commended for that, and awarding attorneys’
fees at this point would, in the Court’s view, be unjust.
Consequently, without directly resolving the issue of whether
Defendants’ conduct in this particular matter was substantially
justified, the Court sees no need for sanctions.

Plaintiffs’

motions will therefore be denied.
IV.

Order

Based on the foregoing, Plaintiffs’ motions for sanctions
and attorneys’ fees (Docs. 142 and 143) are denied.
V.

Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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