Wilson v. South Carolina Department of Corrections et al

Filing 111

ORDER The Court adopts as the Order of the Court the Standard and Discussion sections of the 99 Report and Recommendation related to the failure to disclose the Roth Report and activities thereafter to resist production of the report and obstruct Mr. Roth's deposition (Id. at 8-31). The Court remands the matter to the Magistrate Judge to set reasonable attorneys' fees as a sanction. The Court holds in abeyance the proposed sanctions related to the allegedly missing ESI (id. at 31-35) while the Magistrate Judge addresses issues set forth above on remand. Signed by Honorable Richard M Gergel on 06/15/2020.(hada, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Brandon Bartlett,

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)
Plaintiff,
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vs.
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South Carolina Department of Corrections, )
et al.,
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Defendants.
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)
____________________________________)
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Garcia Wilson,
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Plaintiff,
)
)
vs.
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South Carolina Department of Corrections, )
et al.,
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Defendants.
)
)
____________________________________)

C.A. No. 2:17-3031-RMG

C.A. No. 1:17-3032-RMG

ORDER
This matter comes before the Court on the objections of the Defendant South Carolina
Department of Corrections (“SCDC”) to an Order and Report and Recommendation (“R & R”)
of the Magistrate Judge recommending the imposition of sanctions against SCDC for violations
of rules relating to discovery. (C.A. No. 2:17-3031, Dkt. Nos. 146, 148; C.A. No. 1:17-3032,
Dkt. Nos. 99, 101).1 The Magistrate Judge recommended sanctioning SCDC by requiring
payment of Plaintiffs’ reasonable attorneys’ fees associated with the failure to timely produce the

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The R & R was identical in the above captioned cases. For purposes of simplicity, citation to the
R & R will be to filings in Bartlett, C.A. No. 2:17-3031.
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Roth Report in discovery and obstruction of efforts to take the deposition of the author of the
report, Tom Roth. (Dkt. No. 231 at 27-31). The Magistrate Judge also found that SCDC failed to
take reasonable steps to preserve certain electronically stored evidence provided to Mr. Roth and
that Plaintiffs have been prejudiced by this loss. She recommended that as sanctions for this
failure to preserve this evidence, SCDC be prevented from contesting the contents of the Roth
Report and that Plaintiffs be allowed to present evidence and argument to the jury regarding
SCDC’s loss of this information. (Id. at 31-34).
Legal Standard
The Magistrate Judge makes a recommendation to the Court that has no presumptive
weight and the responsibility to make the final determination rests with the District Court.
Matthew v. Weber, 423 U.S. 261, 270-71 (1976). The District Court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.”
28 U.S.C. § 636(b)(1)(C).
Rule 37 of the Federal Rules of Civil Procedure provides that where a party fails to
produce in discovery information required under Rule 26(a), the violating party may be subject
to sanctions. These possible sanctions include an order to pay “reasonable expenses, including
attorneys’ fees, caused by the failure,” and an authorization of the injured party to inform the
jury of the violating party’s actions. Fed. R. Civ. P. 37(c)(1)(A), (B). A party to a civil action in
federal court, in response to discovery requests, has the duty to produce “any nonprivileged
matter that is relevant to any party’s claim or defense,” and there is a continuing duty to
supplement where a party subsequently discovers or becomes aware of additional relevant
evidence. Fed. R. Civ. P. 37(b), (e).

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In determining the appropriate sanction for a failure to disclose, the Court should
consider (1) whether the party acted in bad faith; (2) the amount of prejudice that noncompliance caused the opposing party; (3) the need for deterrence of the particular sort of noncompliance; and (4) whether less drastic sanctions would be effective. So. States Rack and
Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
Discussion
These two actions involve claims by inmates incarcerated in institutions operated by
SCDC who assert, inter alia, that Defendants exposed them to unreasonable danger by
systematically understaffing their prison institutions, resulting in assaults and severe physical
injuries. Plaintiffs propounded to Defendants broad discovery requests that required the
production of documents containing information related to safety and understaffing, and
identification of witnesses with knowledge regarding these matters.
SCDC commissioned a study, completed in March 2018, which made a “security staffing
assessment” of thirteen SCDC facilities, including ones at issue in these cases, and found a
correlation between understaffing and prison violence. (Dkt. No. 142 at 3-4, 9). The report was
prepared by an outside consultant, Mr. Tom Roth, and the study came to be known as the Roth
Report. The findings and conclusions of the Roth Report are unquestionably relevant to
Plaintiffs’ claims in these suits and there was no credible basis for non-disclosure.
A.

Failure to Produce the Roth Report and Mr. Roth for Deposition Testimony
Plaintiffs propounded discovery requests in mid-2018 and early 2019 that plainly covered

the substance of the Roth Report, but the report was not produced by SCDC in discovery and
was not included on any privilege log. Mr. Roth was also not identified as a potential witness.

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Instead, Plaintiffs learned of the existence of the Roth Report from news articles published on
January 12 and April 11, 2019. A redacted version of the Roth Report was obtained by a news
reporter from SCDC under the Freedom of Information Act. Upon publication of the Roth
Report’s findings in the news media, Plaintiffs made a specific demand for this non-disclosed
report. As the Magistrate Judge described in detail in the R & R, SCDC then engaged in a
protracted battle to prevent disclosure of the clearly discoverable Roth Report and then
attempted to obstruct the court-ordered deposition of Mr. Roth. (Dkt. No. 146 at 14-23).
The actions of SCDC seeking to prevent disclosure of and obstructing access to this
highly probative evidence are well documented in the Magistrate Judge’s thorough R & R and
clearly constitute sanctionable conduct under Rule 37. The Magistrate Judge concluded that the
agency did not act in bad faith and ultimately the Roth Report was produced by SCDC under
Court orders, reducing to some degree the prejudice to Plaintiffs. There is, however, a very
strong need to deter this type of discovery abuse, and the Court finds that no sanction less than
an order of payment of Plaintiffs’ expenses, including attorneys’ fees, is sufficient for these
multiple discovery rule violations detailed in the R & R.
The Court HEREBY ADOPTS the portion of the R & R setting forth the legal standards
and the discussion relating to the attorneys’ fees sanction (Dkt. No. 146 at 8-31) as the order of
the Court. The Court REMANDS the matter to the Magistrate Judge to set a reasonable
attorneys’ fee as a sanction based upon attorney hours and expenses resulting from SCDC’s
discovery rule violations.
B.

Failure to Preserve Electronically Stored Information
The Magistrate Judge additionally determined that SCDC failed to preserve

electronically stored information (“ESI”) that was provided to Mr. Roth and that Plaintiffs “have

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been prejudiced by the loss of this ESI.” (Id. at 33). SCDC challenges this conclusion and
contends that it has provided Plaintiffs all of the information it has requested in discovery that
was given to Mr. Roth. (Dkt. No. 157 at 2-5).

In an effort to obtain further clarification in this

matter, the Court issued an order directing that Plaintiffs specify any documents that were
provided to Mr. Roth and not produced by SCDC in discovery. (Dkt. No. 154.) Plaintiff
responded by identifying numerous documents that have not been produced by SCDC. (Dkt.
No. 156 at 2-17).
To obtain a better understanding of the alleged failure of SCDC to produce to Plaintiffs
documents provided to Mr. Roth, the Court REMANDS this matter to the Magistrate Judge to:
1.

Review the list of allegedly missing documents provided by Plaintiffs and
make findings concerning whether such documents have been produced
or whether SCDC failed to preserve or otherwise failed to produce such
documents;

2.

Make a finding of any specific prejudice that Plaintiffs have suffered, if any, if
the ESI has been lost2; and

3.

Recommend any sanctions, if appropriate, based upon those findings.

In the interim, the Court will hold in abeyance the Magistrate Judge’s recommendations
regarding sanctions associated with allegedly lost ESI. (Id. at 31-35).
Conclusions

2

In response to the Court’s inquiry (Dkt. No. 154), SCDC stated that it does not intend to object to
the admissibility of the Roth Report or contest the accuracy of Roth’s data or conclusions, beyond
objections previously made and ruled upon by this Court. (Dkt. No. 157 at 1). This representation
by SCDC to the Court is binding and eliminates the need to impose any sanction preventing SCDC
from contesting the contents of the Roth Report.
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Based on the foregoing, the Court adopts as the Order of the Court the Standard and
Discussion sections of the R & R related to the failure to disclose the Roth Report and activities
thereafter to resist production of the report and obstruct Mr. Roth’s deposition (Id. at 8-31). The
Court remands the matter to the Magistrate Judge to set reasonable attorneys’ fees as a sanction.
The Court holds in abeyance the proposed sanctions related to the allegedly missing ESI (id. at
31-35) while the Magistrate Judge addresses issues set forth above on remand.
AND IT IS SO ORDERED.

s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
June 15, 2020
Charleston, South Carolina

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