Slabisak, M.D. v. The University of Texas Health Science Center at Tyler et al
MEMORANDUM OPINION AND ORDER denying 104 Opposed MOTION for Sanctions filed by Sara Slabisak, M.D.. Signed by District Judge Amos L. Mazzant, III on 10/4/2018. (daj, )
United States District Court
EASTERN DISTRICT OF TEXAS
SARA SLABISAK, M.D.
THE UNIVERSITY OF TEXAS HEALTH
SCIENCE CENTER AT TYLER and
CHRISTUS GOOD SHEPHERD MEDICAL
Civil Action No. 4:17-CV-597
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff Sara Slabisak, M.D.’s Motion for Sanctions Against
Defendant the University of Texas Health Science Center at Tyler (“UTHSCT”) (Dkt. #104).
After considering the motions and relevant pleadings, the Court finds Plaintiff’s motion should
be denied (Dkt. #104).
Plaintiff moves for sanctions against Defendant alleging three violations: (1) spoliation of
interview notes; (2) the failure to produce interview notes; and (3) improper deposition conduct
Concerning Plaintiff’s first claim, Donny Henry—UTHSCT’s deputy Title IX
coordinator—and David Conley—UTHSCT’s Title IX coordinator—interviewed Plaintiff on
January 8 and 11, 2016, regarding Plaintiff’s sexual harassment claim against Dr. Mohammad
Makkouk (Dkt. #104 at p. 2). Henry and Conley then interviewed Dr. Makkouk on or about
January 20, 2016 (Dkt. #104 at p. 2).
During these interviews, Henry and Conley made
handwritten notes (Dkt. #104 at p. 2). In his deposition, Henry testified that both his and
Conley’s notes from the interviews with Plaintiff and Dr. Makkouk were shredded after he and
Conley created summaries of the notes (Dkt. #105 at pp. 5–6). Henry explained that he learned
in a previous position at the Office of the Attorney General to shred handwritten notes after
summarizing them (Dkt. #105 at pp. 5–6).
Second, Henry also interviewed Dr. Ifeanyi E. Elueze, Tammy Mitchell, Neil Patel,
Zehra Hussein, and Austin Ogwu in September 2016 (Dkt. #104 at p. 3). Henry testified that he
did not destroy his handwritten notes from these interviews because UTHSCT’s Chief of Police
suggested that Henry should stop shredding his handwritten notes sometime between January
and September 2016 (Dkt. #105 at pp. 10–11). Plaintiff claims UTHSCT did not produce
Henry’s retained handwritten notes until after Henry’s deposition (Dkt. #104 at p. 3).
Third, during Henry’s deposition, Plaintiff claims that Terry Witter—Vice Preisent for
Legal Affairs and Chief Legal Officer of UTHSCT—“arose from her seat, walked over to Henry,
and pointed out to Henry sections of the document he was being questioned upon.” (Dkt. #104
at p. 3). Plaintiff contends Witter unethically assisted Henry’s testimony (Dkt. #104 at p. 9).
Plaintiff filed the motion at issue on August 13, 2018 (Dkt. #104). UTHSCT filed its
response to the motion on August 17, 2018 (Dkt. #106). Plaintiff did not file a reply to the
“‘[T]he judge [imposing sanctions] should take pains neither to use an elephant gun to
slay a mouse nor to wield a cardboard sword if a dragon looms. Whether deterrence or
compensation is the goal, the punishment should be reasonably suited to the crime.’” Rimkus
Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 618 (S.D. Tex. 2010) (quoting
Anderson v. Beatrice Foods Co., 900 F.2d 388, 395 (1st Cir. 1990)).
“Spoliation of evidence ‘is the destruction or the significant and meaningful alteration of
evidence.’” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) (quoting Rimkus, 688 F. Supp.
2d at 612). “Mere destroying or altering of evidence, however, does not necessarily mean that a
party has engaged in sanction-worthy spoliation.” Smith v. Chrysler Grp., LLC, 1:15-CV-218,
2016 WL 7741735, at *3 (E.D. Tex. Aug. 31, 2016) (citing Ashton v. Knight Transp., Inc., 772
F. Supp. 2d 772, 789 (N.D. Tex. 2011); Rimkus, 688 F. Supp. 2d at 642). “A party’s duty to
preserve evidence comes into being when the party has notice that the evidence is relevant to the
litigation or should have known that the evidence may be relevant.” Guzman, 804 F.3d at 713
(quoting Rimkus, 688 F. Supp. 2d at 612). “The Fifth Circuit permits an adverse inference
against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’” Condrey
v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005); see also King v. Ill. Cent. R.R., 337
F.3d 550, 556 (5th Cir. 2003).
“Bad faith, in the context of spoliation, generally means
destruction for the purpose of hiding adverse evidence.” Guzman, 804 F.3d at 713 (citing Mathis
v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998)). “The term ‘bad faith’ has
been described as conduct involving ‘fraudulent intent and a desire to suppress the truth.’”
Ashton, 772 F. Supp. 2d at 800 (quoting Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335,
344 (M.D. La. 2006)). “A trial court’s decision on a motion for sanctions for spoliation of
evidence during discovery is reviewed for abuse of discretion.” Guzman, 804 F.3d at 713 (citing
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 569 (5th Cir. 1996)).
Rule 37 Sanctions—Untimely Production
Federal Rule of Civil Procedure 37 enables the Court to sanction a party for its failure to
comply with a court order or disclose evidence. FED. R. CIV. P. 37(b)–(c); Chilcutt v. United
States, 4 F.3d 1313, 1319–20 (5th Cir. 1993); SynQor, Inc. v. Artesyn Techs., Inc., No. 2:07-CV497-TJW-CE, 2011 WL 2683184, at *3 (E.D. Tex. July 11, 2011). “The following factors
should guide a districts court’s exercise of its discretion to impose sanctions for a discovery
violation: ‘(1) the reasons why disclosure was not made; (2) the amount of prejudice to the
opposing party; (3) the feasibility of curing such prejudice with a continuance of the trial; and (4)
any other relevant circumstances.’” United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016)
(quoting United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000)); CQ, Inc. v. TXU Min. Co.,
L.P., 565 F.3d 268, 280 (5th Cir. 2009). “Any sanction imposed should be the least severe
penalty necessary to ensure compliance with the court’s discovery orders.” Dvorin, 817 F.3d at
453. The district court is given broad discretion in conducting this “fact-intensive inquiry.” Id.
(citing Mercury Air Grp., Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001)). However, the
court’s discretion is not “unlimited.” Chilcutt, 4 F.3d at 1320 (citing Marshall v. Segona, 621
F.2d 763, 767 (5th Cir. 1980); Emerick v. Fenick Indus., Inc., 539 F.2d 1379, 1381 (5th Cir.
“‘The underlying purpose of a deposition is to find out what a witness saw, heard, or
did . . . . [T]here is no proper need for the witness’s own lawyer to act as intermediary,
interpreting questions, deciding which questions the witness should answer, and helping the
1. The Supreme Court has stated that the district court must be guided by the following considerations when
determining whether to impose sanctions under Rule 37: (1) the sanction must be just; and (2) it must “specifically
relate to the particular ‘claim’ which was at issue in the order to provide discovery.” Chilcutt, 4 F.3d at 1320–21
(quoting Ins. Corp. of Ir., Ltd. v. Compagnie Des Bauxites de Guinee, 456 U.S. 694, 697 (1982); Compaq Comput.
Co. v. Ergonome, Inc., 387 F.3d 403, 413–14 (5th Cir. 2004)). Extreme sanctions are “‘remed[ies] of last resort’
which should be applied only in extreme circumstances.” Butler v. Cloud, 104 F. App’x 373, 374 (5th Cir. 2004)
(per curiam) (quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985)). The Fifth Circuit has
stated that extreme sanctions, such as dismissing a claim or default judgment, are proper when the discovery
misconduct resulted from willfulness or bad faith, when the deterrent value of Rule 37 could not be substantially
achieved by the use of less drastic sanctions, or when the discovery misconduct was plainly attributable to an
attorney rather than a “blameless client,” or because of “confusion or a sincere misunderstanding of the court’s
order.” Batson, 765 F.2d at 514.
witness to formulate answers.’”
VirnetX Inc. v. Cisco Sys., Inc., 6:10-CV-417, 2012 WL
7997962, at *3 (E.D. Tex. Aug. 8, 2012) (quoting Hall v. Clifton Precision, 150 F.R.D. 525, 528
(E.D. Pa. 1993)). “[Federal Rule of Civil Procedure 30] was amended in 1993 and places strict
limits on when an attorney may instruct a deponent not to answer a question.” Id. (citation
omitted). “The court may impose an appropriate sanction—including the reasonable expenses
and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the
fair examination of the deponent.” FED. R. CIV. P. 30(d)(2). “In general, counsel should not
engage in any conduct during a deposition that would not be allowed in the presence of a judicial
officer.” FED. R. CIV. P. 30 advisory committee’s note to 1993 amendment. “‘The meaning of
‘appropriate sanction’ in Rule 30(d)(2) has been broadly interpreted as [t]he full scope of
sanctions available under Rule 30(d)(2) is not expressly described in the text of the rule.’”
Nieman v. Hale, 3:12-CV-2433-L-BN, 2014 WL 4375669, at *5 (N.D. Tex. Sept. 4, 2014)
(quoting Howell v. Avante Servs., LLC, CIV.A. 12-293, 2013 WL 824715, at *5 (E.D. La. Mar.
6, 2013)). “Many courts have construed Rule 30(d)(2) to apply to circumstances where a party’s
conduct at a deposition warranted remedial action.” S. La. Ethanol, L.L.C. v. Fireman’s Fund
Ins. Co., CIV.A. 11-2715, 2013 WL 1196604, at *8 (E.D. La. Mar. 22, 2013) (citations omitted).
As an initial matter, the Court notes that Plaintiff’s motion is untimely. Plaintiff learned
of the issues presented at Henry’s deposition on May 29, 2018 (Dkt. #105). The Court set the
discovery deadline in this case for June 1, 2018, and the dispositive motions deadline for June
14, 2018 (Dkt. #34; Dkt. #69). Despite the passage of time and deadlines, Plaintiff did not raise
the present issues until she filed her response to UTHSCT’s motion for summary judgment on
July 23, 2018, and did not file her motion for sanctions until August 13, 2018 (Dkt. #93; Dkt.
#104). This Court has previously refused to consider a plaintiff’s spoliation argument when the
plaintiff first raised the argument in response to a defendant’s motion for summary judgment.
Sizemore v. Dolgencorp of Tex., Inc., 4:10-CV-650, 2012 WL 1969951, at *1 (E.D. Tex. June 1,
2012) (“The Plaintiff should have filed a discovery motion with the court prior to the conclusion
of the fact discovery deadline in order to preserve this issue.”). Further, if the parties would have
notified the Court of the issues presented earlier, the Court likely could have resolved the issues
through the discovery dispute process detailed in the Scheduling Order—without the need to
consider sanctions (Dkt. #34 at p. 4). Regardless, the Court finds that Plaintiff’s motion should
be denied on its merits.
Plaintiff does not demonstrate that Henry acted in bad faith when he shredded his
handwritten notes from his interviews with Plaintiff and Dr. Makkouk. “Bad faith, in the context
of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Guzman,
804 F.3d at 713 (citing Mathis, 136 F.3d at 1155). “The term ‘bad faith’ has been described as
conduct involving ‘fraudulent intent and a desire to suppress the truth.’” Ashton, 772 F. Supp. 2d
at 800 (quoting Consol. Aluminum Corp., Inc., 244 F.R.D. at 344).
Henry testified that it was his procedure to destroy his handwritten notes after
summarizing them (Dkt. #105 at p. 6). Henry claims he learned this procedure from his previous
employment with the Office of the Attorney General (Dkt. #105 at p. 6). Henry also testified
that once UTHSCT’s Chief of Police recommend that he should not shred his handwritten notes,
Henry ceased to do so (Dkt. #105 at p. 11). Plaintiff contends: “Henry’s claim that he was taught
by the Texas Attorney General’s Office to destroy interview notes is incredulous.
incredible rationale is sufficient to impute a willful or intentional destruction to prevent use of
the notes in litigation. This is bad faith.” (Dkt. #104 at p. 6).
The Court finds that the evidence presented does not show that Henry held a fraudulent
intent and desire to suppress the truth for the purpose of hiding adverse evidence. Henry
provided the summaries of his shredded notes to counsel, who produced the summaries to
Plaintiff prior to Henry’s deposition (Dkt. #105 at p. 6; Dkt. #106 at p. 2). Certainly, if Henry
desired to suppress the truth or hide adverse evidence, he would have shredded the summaries of
his notes as well. See Smith, 2016 WL 7741735, at *3 (citations omitted) (“Mere destroying or
altering of evidence, however, does not necessarily mean that a party has engaged in sanctionworthy spoliation.”); Tex. Instruments, Inc. v. Hyundai Elecs. Indus. Co., Ltd., 190 F.R.D. 413,
419 (E.D. Tex. 1999) (an expert’s disposal of his handwritten notes is not spoliation when other
notes exist). Reviewing all the evidence presented, Plaintiff does not present sufficient evidence
that Henry acted in bad faith when he destroyed his handwritten notes to warrant spoliation
sanctions. Accordingly, the Court DENIES Plaintiff’s motion for sanctions with respect to
Plaintiff’s spoliation argument (Dkt. #104).
Rule 37 Sanctions—Untimely Production
Plaintiff next moves for sanctions against UTHSCT pursuant to Federal Rule of Civil
Procedure 37 because UTHSCT did not produce Henry’s retained handwritten notes concerning
his interviews with Dr. Elueze, Tammy Mitchell, Neil Patel, Zehra Hussein, and Austin Ogwu
(Dkt. #104 at pp. 7–9). The Court’s Order Governing Proceedings required the parties’ initial
mandatory disclosure to include “[a] copy of all documents, electronically stored information,
witness statements, and tangible things in the possession, custody, or control of the disclosing
party that are relevant to the claim or defense of any party.” (Dkt. #19 at p. 4). The Court’s
Scheduling Order reminded the parties “to have already disclosed, without awaiting a discovery
request, information in addition to that required by FED. R. CIV. P. 26, including names of
persons likely to have, and documents containing, information ‘relevant to the claim or defense
of any party.’” (Dkt. #34 at p. 3). Additionally, on March 8, 2018, Plaintiff served her first
requests for production on UTHSCT specifically requesting notes taken by employees of
UTHSCT concerning Plaintiff (Dkt. #104-2 at p. 4).
Despite the Court’s orders and Plaintiff’s requests, Plaintiff claims UTHSCT did not
produce Henry’s notes concerning the individuals listed above until after Henry’s deposition
(Dkt. #104 at p. 8; Dkt. #104-5). Plaintiff argues, “It is unconscionable that . . . [UTHSCT]
would not be aware of the relevance of handwritten notes of interviews taken during the course
of a sexual harassment investigation.” (Dkt. #104 at p. 8). As a result, Plaintiff requests a
“substantial sanction including striking UTHSCT’s pleading and precluding UTHSCT from
opposing Plaintiff’s claims.” (Dkt. #104 at p. 8). UTHSCT’s response does not provide an
explanation for its untimely production of Henry’s notes (Dkt. #106).
“The following factors should guide a districts court’s exercise of its discretion to impose
sanctions for a discovery violation: ‘(1) the reasons why disclosure was not made; (2) the amount
of prejudice to the opposing party; (3) the feasibility of curing such prejudice with a continuance
of the trial; and (4) any other relevant circumstances.’” Dvorin, 817 F.3d at 453 (quoting
Garrett, 238 F.3d at 298); CQ, Inc., 565 F.3d at 280. The Court addresses each factor in turn.
First, UTHSCT does not provide a reason why Henry’s notes were not produced before
Henry’s deposition (Dkt. #106). Accordingly, this factor weighs in favor of sanctions.
Second, Plaintiff does not explain how the late production of Henry’s notes prejudices
Plaintiff (Dkt. #104 at pp. 7–9).
The Court will not impose the “substantial sanction[s]”
requested by Plaintiff without a demonstration that Plaintiff was substantially prejudiced
(Dkt. #104 at p. 8). Without a showing of prejudice, this factor weighs against sanctions.
Third, the Court cannot determine whether a continuance could cure any prejudice
because Plaintiff does not identify any prejudice (Dkt. #104 at pp. 7–9). Assuming prejudice to
Plaintiff exists, the Court again notes that such prejudice could likely have been cured had
Plaintiff notified the Court of this issue earlier.
Fourth, the Court considers its discovery policy as a relevant circumstance. The Court
allows parties to conduct discovery—including the taking of depositions—past the discovery
deadline. If Plaintiff believes she was prejudiced by UTHSCT’s failure to produce Henry’s
notes before Henry’s deposition, the Court suggests the parties conduct a brief, second
deposition of Henry with UTHSCT shouldering the costs. In other words, the Court’s discovery
policy should enable the parties to cure any prejudice caused by UTHSCT’s late production of
Considering the factors examined above, the Court finds sanctions inappropriate for
UTHSCT’s failure to produce Henry’s notes. Therefore, the Court DENIES Plaintiff’s motion
for sanctions with respect to Plaintiff’s Rule 37 argument (Dkt. #104).
Plaintiff next moves for sanctions due to Terry Witter’s deposition interference (Dkt.
#104 at p. 8). Plaintiff claims that during Henry’s deposition Witter, “arose from her seat,
walked over to Henry, and pointed out to Henry sections of the document he was being
questioned upon.” (Dkt. #104 at p. 3). Plaintiff argues the appropriate sanctions for Witter’s
conduct would include: “(1) [s]triking UTHSCT’s pleadings; (2) [p]recluding UTHSCT from
offering evidnece; (3) [a] spoliation instruction; and (4) Plaintiff’s reasonable and necessary
costs and attorney’s fees for filing this motion and deposing Donny Henry.” (Dkt. #104 at
p. 11). UTHSCT’s response does not address Witter’s conduct (Dkt. #106).
The conduct at issue occurred during the following exchange in Henry’s deposition:
A. What is it exactly you’re looking for?
Q. What I was wanting you to look for in your report is any
reference to the fact Dr. Slabisak was using her sexual harassment
complaint to delay any other investigation she might have been
A. That was the perception.
MR. HUFF: Objection; nonresponsive.
Q. My question was if you would look and see if you see anything
in the report.
A. I will look.
MR. HUFF: Okay. Ms. Witter, you need to go sit down and
not be giving your –
MS. WITTER: Excuse me, sir.
MR. HUFF: -- giving your witness a document. You know
that’s improper to walk up and give your witness a
document when he’s testifying. You’re not even counsel of
record in this case.
MS. WITTER: I am counsel of record.
MR. HUFF: No, you’re not.
MS. WITTER: Yes, sir, I am. I have been since the
MR. HUFF: If you do that again you’ll have a chance to
explain that to the Court, because you know that’s improper
and unethical. We’ll take your deposition, but not today.
A. On page 4 under B, it’s the third paragraph.
Q. Okay. What does it say there?
A. “She was interested in what this investigation might entail,
how this might affect her staying in the program and proceeded to
address the other allegations that were presented to the program
Q. Okay. And that’s what Ms. Witter pointed out to you when she
walked over and gave you that, right?
MR. HUDSON: Objection. Just so the record’s clear, the
document went on the table, I grabbed it as soon as it hit
the table, Mr. Henry did not look at the document and then
you went on a tirade against Ms. Witter. So, no, he did not
review a document and, no, he didn’t get anything pointed
out to him, just to make sure that that’s clear for the record
since you don’t like to videotape.
MR. HUFF: You know, you’re free to videotape anytime
you want to.
MR. HUDSON: Agreed, and you’ve opted not to
[videotape the deposition], but you keep making comments
on the record apparently in an attempt to, I suppose, build
something that you can throw at the wall. Nothing here
indicates Mr. Henry has looked at anything improper other
than your exhibit.
(Dkt. #105 at p. 12).
A review of the Docket indicates that Witter is not counsel of record for UTHSCT.
Regardless of Witter’s alleged conduct, an attorney who is not counsel of record should not
actively participate in a deposition. If Witter wishes to represent UTHSCT in this case, she
should make a formal appearance. Otherwise, Witter must not actively participate in future
depositions or claim to be counsel of record in this case.
Concerning Plaintiff’s sanction request, the Court notes that the deposition testimony
supports two versions of events: (1) Plaintiff’s claim that Witter approached Henry, handed him
a document, and pointed to a portion of the document and (2) UTHSCT’s objection that Henry
did not review a document or have any information directed to his attention. If the Court
accepted only Plaintiff’s claim, the Court would find Witter’s conduct inappropriate, but not
sanctionable. Rule 30(d)(2) sanctions are reserved for conduct that impedes, delays, or frustrates
the fair examination of the deponent, not necessarily for single inappropriate acts. Compare
Carter v. Burlington N. Santa, LLC, 4:15-CV-366-O, 2016 WL 3388707, at *3 (N.D. Tex. Feb.
8, 2016) (sanctions appropriate when plaintiff made untruthful statements regarding the contents
of a folder, and counsel instructed plaintiff not to answer questions relating to the contents of the
folder); Howell, 2013 WL 824715, at *6 (sanctions appropriate when counsel informed
deponent, one day before deponent’s deposition, that counsel would no longer represent
deponent, causing deponent to incur the costs of representing himself at his deposition); and
VirnetX Inc., 2012 WL 7997962, at *3 (sanctions appropriate when counsel terminated a
deposition because counsel merely disagreed with a line of questioning); with Kasparov v. Ambit
Tex., LLC, 3:16-CV-3206-G-BN, 2017 WL 4842350, at *6–9 (N.D. Tex. Oct. 26, 2017)
(sanctions inappropriate when defense counsel asked the same questions multiple times believing
the witness did not give a responsive answer and plaintiff’s counsel repeatedly objected to the
form of the questions). Therefore, even if Witter engaged in inappropriate deposition conduct,
the Court finds such conduct would not rise to a sanctionable level.
The Court reminds the parties of their duties and ethical obligations under the Federal and
Local Rules as well as the Texas Lawyer’s Creed. However, the Court DENIES Plaintiff’s
motion for sanctions with respect to Plaintiff’s Rule 30(d)(2) argument (Dkt. #104).
Due to the preceding discussion, the Court DENIES Plaintiff’s Motion for Sanctions
Against Defendant UTHSCT (Dkt. #104).
SIGNED this 4th day of October, 2018.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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