CSX Transportation, Inc. v. Gilkison et al

Filing 1553

MEMORANDUM OPINION AND ORDER CONFIRMING THIS COURTS PRONOUNCED ORDER GRANTING THE PLAINTIFFS MOTION 1496 FOR SANCTIONS AS FRAMED Signed by Senior Judge Frederick P. Stamp, Jr on 12/27/12. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CSX TRANSPORTATION, INC.,
Plaintiff,
v.

Civil Action No. 5:05CV202
(STAMP)

ROBERT V. GILKISON,
PEIRCE, RAIMOND & COULTER, P.C.,
a Pennsylvania professional corporation
a/k/a ROBERT PEIRCE & ASSOCIATES, P.C.,
a Pennsylvania professional corporation,
ROBERT PEIRCE, JR., LOUIS A. RAIMOND,
MARK T. COULTER and RAY HARRON, M.D.,
Defendants.
MEMORANDUM OPINION AND ORDER CONFIRMING THIS COURT’S PRONOUNCED
ORDER GRANTING THE PLAINTIFF’S MOTION FOR SANCTIONS AS FRAMED
I. Background1
On December 7, 2012, the plaintiff, CSX Transportation, Inc.
(“CSX”), four days prior to the start of jury selection and trial
of the above-styled civil action, filed an emergency motion for
sanctions regarding the lawyer defendants’ late production of
documents in violation of prior court orders and a request for
hearing.

CSX claimed that on December 6 and December 7 the lawyer

defendants produced 8,417 pages of responsive and non-privileged
documents in violation of prior court orders, which required such
documents to be produced by October 5, 2012.

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As a result of this

For a brief procedural history of this case, please see this
Court’s memorandum opinion and order denying lawyer defendants’
motion for summary judgment related to CSX’s Earl Baylor
allegations and claims (ECF No. 1436).

late production, CSX requested that the Court impose sanctions upon
the lawyer defendants.
Specifically, CSX’s motion requested that this Court dismiss
the lawyer defendants’ counterclaims pursuant to Federal Rule of
Civil Procedure 37(b). In the alternative, plaintiff CSX requested
that this Court prohibit the lawyer defendants from introducing
evidence regarding their purported practice of dismissing FELA
cases upon receipt of prior releases, or that this Court order a
separate trial of the counterclaims to be held at a later date
following the resolution of the plaintiff’s claims.

CSX further

requested that this Court hold a hearing on this matter.
The lawyer defendants filed a response in opposition to this
motion on December 9, 2012.

The lawyer defendants stated that the

plaintiff cannot demonstrate any real prejudice as a result of this
mistake.

As an alternative to the sanctions proposed by the

plaintiff, the lawyer defendants requested that if any sanctions be
imposed, this Court should preclude the lawyer defendants from
using any of the documents in question as exhibits, and allow CSX
to mark any of the documents as exhibits.
On December 10, 2012, this Court held a hearing on CSX’s
motion for sanctions. At this hearing, this Court determined that,
under the circumstances, sanctions should be imposed, but as
framed.

This

order

confirms

the

rulings

pronounced

at

the

conclusion of the hearing. Specifically, this Court (1) prohibited

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the lawyer defendants from using the late produced documents in any
way during the trial and (2) allowed CSX to use the late produced
documents without objection by any party.2 Therefore, CSX’s motion
for sanctions is granted as framed.
II.

Applicable Law

Failure to comply with a discovery order or to supplement a
discovery response can result in the imposition of sanctions.
Federal Rule of Civil Procedure 37(b)(2)(A) states, in part, “[i]f
a party . . . fails to obey an order to provide or permit discovery
. . . the court where action is pending may issue further just
orders.”

A trial court has broad discretion in applying sanctions

under Rule 37.

See Nat’l Hockey League v. Metro. Hockey Club,

Inc., 427 U.S. 639, 644 (1976).

The sanctions enumerated in Rule

37 are “flexible and with reason, may be applied in many or varied
forms as the court desires by exercising broad discretion in light
of the facts of each case.”

Guidry v. Continental Oil Co., 640

F.2d 523, 533 (5th Cir. 1981), cert. denied, 454 U.S. 818 (1981).
“The district court may, within reason, use as many and as varied
sanctions as are necessary to hold the scales of justice even.” 8B
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2284 (3d ed. 2012).

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The Court determined that it could, if necessary at trial,
decline to admit any late produced document as an exhibit if the
Court felt that it was inadmissible for any reason under the
Federal Rules of Evidence.
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Four factors, however, must be considered in determining
what sanctions to impose:

“(1) whether the non-complying party

acted in bad faith, (2) the amount of prejudice that
noncompliance caused the adversary, (3) the need for deterrence
of the particular sort of non-compliance, and (4) whether less
drastic sanctions would have been effective.”

Southern States

Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597
(4th Cir. 2003)(quoting Anderson v. Found. for Advancement, Educ.
& Emp’t of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998)).
III.

Discussion

This Court found that sanctions were warranted in this
particular case.

However, this Court believed that after

considering the factors in Anderson, those sanctions requested by
CSX were not appropriate.

First, this Court was unable to find

that the lawyer defendants acted in bad faith in not producing
the documents at an earlier date.

Second, while this Court did

find that some prejudice resulted from the lawyer defendants not
producing these documents before December 6 and December 7, CSX
still had the opportunity to review these documents prior to the
issues that those documents concerned arose at trial.

Third,

although not mentioned during the hearing, this Court also
believed that granting the sanctions requested by CSX would not
provide much of a deterrent affect against such things happening
again in the future, as no bad faith was involved and the late

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production seemed to be a mistake or oversight, albeit
substantial, on behalf of the lawyer defendants.

Fourth, this

Court found that the less drastic sanctions that it imposed would
be effective.
framed.

Therefore, this Court granted CSX’s motion as

Whereby, it (1) prohibited the lawyer defendants from

using the late produced documents in any way in the case and (2)
allowed CSX to use the late produced documents without objection
by any party, subject to this Court’s right to decline admission
of an exhibit under the Federal Rules of Evidence.
IV.

Conclusion

For the above stated reasons, CSX’s motion for sanctions
(ECF No. 1496) is GRANTED AS FRAMED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

December 27, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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