The opinion of the court was delivered by: U.S. Magistrate Judge Hon. William V. Gallo
ORDER IMPOSING DISCOVERY SANCTIONS ON DEFENDANTS FOR FAILURE TO COMPLY WITH COURT'S DISCOVERY ORDERS
On February 1, 2013, this Court held an Order to Show Cause ("OSC") Hearing which provided Defendants with the opportunity to show cause why sanctions should not be imposed against them for failure to comply with the Court's discovery orders. Present before the Court at the OSC Hearing were Mr. Eugene G. Iredale and Ms. Julia Yoo on behalf of Plaintiffs, and Ms. Jennifer K. Gilman on behalf of Defendants. The Court has reviewed Defendants' Response to the OSC, Plaintiffs' Reply, and listened to the oral arguments asserted by both parties at the OSC Hearing. (Doc. Nos. 45, 50.)
As a result of Defendants' failure to comply with this Court's orders to timely provide Plaintiffs with documents needed to complete their expert report, the Court hereby imposes discovery sanctions upon Defendants pursuant to Federal Rule of Civil Procedure 37. On July 3, 2012, the Court issued a Second Amended Scheduling Order, which set the deadline to provide expert reports for November 16, 2012. (Doc. No. 30 at 2.) Although the deadline for expert reports has expired, Plaintiffs are permitted to submit an expert report from Mr. Roger Clark, on or before March 8, 2013. Defendants remain subject to the discovery deadlines set forth in the Second Amended Scheduling Order. (Doc. No. 30.) Thus, Defendants will not be permitted to submit an expert report or a supplemental expert report. The reasons for imposing these sanctions are discussed below.
On July 3, 2012, this Court issued a Second Amended Scheduling Order, which set deadlines by which the parties had to complete expert witness discovery. (Doc. No. 30.) The deadline to produce expert witness reports was set for November 16, 2012, and the deadline to supplement any expert witness reports was set for November 30, 2012. Id. at 2.
On October 5, 2012, this Court held a Status Conference with counsel for both parties. (Doc. No. 32.) At Plaintiffs' request, the Court ordered Defendants to produce all documents pertaining to prior use of Tasers by the two officers named in Plaintiffs' Complaint. (Doc. No. 32.) Defendants were ordered to produce the Taser documents to Plaintiffs by October 22, 2012. Id. Despite the deadline set by the Court, Defendants failed to produce the Taser discovery. (Doc. No. 36 at 1.)
On December 12, 2012, the parties filed a Joint Motion to Extend the Expert Discovery Deadlines. (Doc. No. 36.) In the Joint Motion, the parties explained that Defendants had not yet provided Plaintiffs with the Taser discovery. Id. at 1. The parties noted that, due to this delay, the experts retained by the parties had not had the opportunity to review the outstanding discovery, and were therefore unable to issue expert reports. Id. The parties requested that the Court extend the discovery deadlines by an additional four weeks to allow Defendants to produce the discovery, and Plaintiffs' expert to subsequently issue a report.
As required by this Court's Chambers Rules, Plaintiff's counsel submitted a Declaration in support of the parties' Joint Motion. (Doc. No. 36-1.) Counsel noted in the Declaration that this Court had ordered Defendants to produce all documents pertaining to prior use of Tasers by the two named officers no later than October 22, 2012. Id. at 2. On October 29, 2012, Plaintiff's counsel received a supplemental privilege log from Defendants, but did not receive the Taser documents. Id. On October 30, 2012, Plaintiff's counsel sent Defense counsel an email requesting the outstanding documents. Id. On November 2, 2012, Plaintiff's counsel drafted a proposed Joint Motion to continue the expert discovery deadlines that were looming and sent it via email to Defense counsel. Id. Defense counsel did not respond. Id. On November 7, 2012, the parties attended a Mandatory Settlement Conference ("MSC") in the undersigned's chambers, and again discussed the issue of outstanding discovery. Id. Once again, the Court ordered Defendants to provide the outstanding Taser documents to Plaintiffs. Id.
Despite the Court's second order, Defendants failed to provide the Taser documents to Plaintiffs. On November 16, 2012, Plaintiffs' counsel tried unsuccessfully to reach Defense counsel. (Doc. No. 36-1 at 2.) On December 6, 2012, Plaintiffs' counsel sent Defense counsel a letter in an attempt to follow up on the outstanding discovery. Id. On December 10, 2012, Defense counsel left a message with Plaintiffs' counsel that the Taser documents had been sent to Plaintiffs via email on November 23, 2012. Id. However, despite an exhaustive search of the email account, Plaintiffs' counsel was unable to locate any emails related to production of Taser documents. Id. On December 11, 2012, Plaintiffs' counsel sent another letter to Defense counsel, following up on the outstanding discovery. Id. On December 12, 2012, during a telephone conversation, Defense counsel represented that she would send the outstanding discovery to Plaintiffs' counsel via email. Id.
On December 14, 2012, this Court issued an Order denying the parties' Joint Motion to Extend Expert Discovery Deadlines. (Doc. No. 37.) The Court's reasoning centered on the fact that the deadline to produce expert witness reports had expired nearly one month prior to the filing of the Joint Motion, and the supplement expert reports deadline had expired two weeks prior to the filing of the Joint Motion. Id. (Doc. No. 37 at 2.) The parties chose to wait until almost one month after the expiration of discovery deadlines before requesting a continuance. (Doc. No. 37 at 2.) Both parties were clearly aware of the roadblocks described in their Joint Motion well in advance of the filing date, but failed to seek a timely continuance from the Court. (Doc. No. 37 at 2.) The Court noted in its Order that, while Defendants were certainly at fault for failing to comply with the Court's October 5, 2012, Order to produce certain discovery, Plaintiffs had an obligation to ensure that the discovery deadlines were being complied with, and when they were not, to timely bring the dispute to the Court's attention. (Doc. No. 37 at 2.)
On December 14, 2012, the Court also set an OSC Hearing for February 1, 2013. (Doc. No. 37 at 3.) Defendants were ordered to show cause why sanctions should not be imposed for failure to comply with this Court's orders on October 5, 2012, and November 7, 2012, to produce discovery to Plaintiffs. Id. Counsel for both parties were ordered to attend the OSC Hearing. Id. A briefing schedule was set, ordering Defendants to file a Response to the OSC notice, and allowing Plaintiffs the opportunity to file a Reply to Defense counsel's Response. Id.
On January 4, 2013, Defendants filed a Response to the OSC notice. (Doc. No. 45.) In the Response, they conceded that the Taser documents were provided to Plaintiffs after the deadline imposed by the Court, but that it was an inadvertent oversight. Id. Defendants apologized to the Court and opposing counsel for the "innocent error," assured that there was "no intent to create prejudice to the Plaintiffs," and informed the Court that the Taser documents had been subsequently provided to Plaintiffs. Id. at 3. Defendants also remarked that the failure to include the Taser documents "was corrected following the Court's comments at the November 7, 2012 Mandatary Settlement Conference."*fn1 (Doc. No. 45 at 3.) Defendants also informed the Court that Defense counsel was involved in an automobile collision on November 30, 2012, and her resulting injury caused "some understandable delays in getting the motions filed." Id.
On January 18, 2013, Plaintiffs hand delivered to the undersigned's chambers a Reply to Defendants' Response to the OSC notice, because the Court's electronic filing system was unexpectedly offline. On January 21, 2013, Plaintiffs electronically filed their Reply. (Doc. No. 46.) Plaintiffs simultaneously filed a Motion to Shorten Time to Permit Plaintiffs to Timely File Their Reply to Defendants' Response to OSC. (Doc. No. 47.) On January 25, 2013, the Court denied without prejudice Plaintiffs' Motion to Shorten Time. (Doc. No. 48.) The Court determined that Plaintiffs' Reply brief was not a Reply to Defendants' OSC Response, but rather, Plaintiffs had essentially filed a motion to compel discovery as to other unfulfilled discovery obligations and violations. Id.
On January 30, 2013, Plaintiffs filed another Reply to the OSC notice. (Doc. No. 50.) In their Reply, Plaintiffs noted that they were "sympathetic to [Defense counsel's] health issues and administrative issues that may have caused the delay in the production of discovery," and indicated that they would not request monetary sanctions against Defendants. (Doc. No. 50 at 1.) However, Plaintiffs indicated that they were seeking evidentiary sanctions for the discovery violations. Id. Plaintiffs argued that they have been severely prejudiced due to the delays in the discovery process and cannot prosecute their claims and present evidence relative to the use of the Taser. Id. ...