City of Colton v. Am. Promotional Events, Inc.
City of Colton v. Am. Promotional Events, Inc.
2012 WL 13013035 (C.D. Cal. 2012)
June 7, 2012
Segal, Suzanne H., United States Magistrate Judge
Summary
The United States failed to produce Electronically Stored Information in native format pursuant to Rule 34, and the EPA failed to produce a timely privilege log and the inclusion of a significant number of non-privileged documents on the log ultimately produced. The Special Master issued a sanction authorizing Goodrich to conduct discovery for an additional four months while staying Goodrich's obligation to respond to discovery propounded by the United States. The United States' Objections to and Motion for Modification of the Special Master's March 21 Sanctions Order was denied.
Additional Decisions
CITY OF COLTON, Plaintiff,
v.
AMERICAN PROMOTIONAL EVENTS, INC., et al., Defendants.
And Related Consolidated Actions
v.
AMERICAN PROMOTIONAL EVENTS, INC., et al., Defendants.
And Related Consolidated Actions
NO. EDCV 09–01864 PSG (SSx)[Consolidated with Case Nos. CV 09–06630 PSG (SSx), CV 09–06632 PSG (SSx), CV 09–07501 PSG (SSx), CV 09–07508 PSG (SSx), and CV 10–00824 PSG (SSx) ]
United States District Court, C.D. California
Signed June 07, 2012
Counsel
Danielle Gerber Sakai, Best Best and Krieger LLP, Riverside, CA, John H. Holloway, Best Best and Krieger LLP, Walnut Creek, CA, James R. Macayeal, Jeffrey A. Spector, Patricia Lyn Hurst, Rachael Amy Kamons, Richard M. Gladstein, James Wheelock Beers, US Department of Justice, Amy R. Gillespie, Bonnie Cosgrove, David Rosskam, United States Department of Justice Environmental Enforcement Section, Washington, DC, Bradley R. O'Brien, Deborah Gitin, US Department of Justice Environmental Enforcement Section, Michele S. Benson, US Environmental Protection Agency, San Francisco, CA, Davis H. Forsythe, United States Department of Justice, Denver, CO, Adam Michael Reich, Katherine Frenck Murray, Paul Hastings Janofsky & Walker LLP, Los Angeles, CA, for Plaintiff.Daniel J. Coyle, Delfino Madden O'Malley Coyle & Koewler, LLP, Olivia M. Wright, Steven H. Goldberg, Downey Brand LLP, Jennifer Hartman King, King Williams and Gleason LLP, Sacramento, CA, Marc A. Shapp, Hunsucker Goodstein & Nelson PC, Lafayette, CA, Francis Norman Scollan, Emily L. Murray, John Anthony Lawrence, Richard Alan Dongell, Matthew Clark Bures, Dongell Lawrence Finney LLP, Allan Edward Ceran, Burke Williams & Sorensen LLP, William W. Funderburk, Jr., Anna Louise Le May, Castellon and Funderburk LLP, Sarah E. Johnston, Barnes and Thornburg LLP, Beth Marie Weinstein, Steven Edward Soule, Beth Marie Weinstein, C. Robert Boldt, Kirkland and Ellis LLP, David S. Poole, Poole and Shaffery LLP, Mark Riera, Akerman LLP, Andrew Zachary Edelstein, Mayer Brown LLP, Jeffrey A. Rosenfeld, DLA Piper LLP, Los Angeles, CA, Stephen C. Lewis, Robert Morgan Gilhuly, Barg Coffin Lewis and Trapp LLP, San Francisco, CA, Keith Alan Kelly, Law Office of Keith A. Kelly, Douglas C. Smith, Smith Law Offices LLP, Amy E. Hoyt, Burke Williams & Sorensen LLP, Riverside, CA, John E. Van Vlear, Newmeyer & Dillion LLP, Daniel S. Kippen, Voss Cook and Thel LLP, Newport Beach, CA, Christine A. Renshaw, Steven Joseph Renshaw, Renshaw and Associates APLC, Ventura, CA, Christopher T. Johnson, Wolfe & Wyman LLP, Jad T. Davis, Kutak Rock LLP, Irvine, CA, Elizabeth Boucher Dawson, US Department of Justice, Washington, DC, Brian Edward Koegle, Poole & Shaffery LLP, Valencia, CA, Brian A. Rawers, Katherine T. Weadock, Lewis Brisbois Bisgaard and Smith LLP, San Diego, CA, Matthew C. Sostrin, Richard F. Bulger, Mayer Brown LLP, Chicago, IL, for Defendants.
Thomas N. Jacobson, Law Offices of Thomas N. Jacobson, Riverside, CA, Leslie Marie Hill, US Department of Justice, Andrew Wood Ingersoll, United States Department of Justice Environmental Enforcement Section, Michael C. Augustini, US Department of Justice Environmental Defense Section, Washington, DC, Henry Lerner, James L. Meeder, Allen Matkins Leck Gamble Mallory and Natsis LLP, Peter H. Weiner, Paul Hastings LLP, San Francisco, CA, Martin N. Refkin, Thomas Alan Bloomfield, Timothy P. Gallagher, The Gallagher Law Group PC, Jeffrey David Dintzer, Dana Lynn Craig, Patrick Ward Dennis, Matthew C. Wickersham, Gibson Dunn and Crutcher LLP, David C. Solinger, Hunsucker Goodstein & Nelson PC, Michael R. Farrell, Allen Matkins Leck Gamble Mallory and Natsis LLP, Nicholas James Begakis, Dennis S. Ellis, Paul Hastings Janofsky & Walker LLP, Los Angeles, CA, Penelope Alexander–Kelley, Jean–Rene Claude Basle, Office of the County Counsel, San Bernardino, CA, Sallie Lux, Pro Hac Vice, Brouse McDowell, Akron, OH, Brian L. Zagon, Philip C. Hunsucker, Hunsucker Goodstein PC, Lafayette, CA, Amanda A. Neidert, Pro Hac Vice, Joseph L. Beavers, Pro Hac Vice, Joseph W. Hovermill, Pro Hac Vice, Miles & Stockbridge PC, Baltimore, MD.
Segal, Suzanne H., United States Magistrate Judge
MEMORANDUM AND ORDER DENYING THE UNITED STATES' “OBJECTIONS TO AND MOTION FOR MODIFICATION OF THE SPECIAL MASTER'S MARCH 21 SANCTIONS ORDER” (Dkt. No. 1437)
I.
INTRODUCTION
*1 On March 21, 2012, the Honorable Venetta S. Tassopoulos (Ret.), in accordance with her designation as the Special Master in the above-captioned matter, (see Dkt. No. 278), issued a Report and Order granting in part and denying in part Goodrich Corporation's motion for sanctions against the United States of America. (Dkt. No. 1401).
On April 5, 2012, the United States filed “Objections to and Motion for Modification of the Special Master's March 21 Sanctions Order.” (Dkt. No. 1437). On April 16, 2012, Goodrich filed an Opposition including, among other attachments, the Declaration of Matthew C. Wickersham. (Dkt. No. 1452). The United States filed a Reply on May 8, 2012. (Dkt. No. 1491). On May 22, 2012, the Court held a hearing on the Motion.
As discussed in further detail below, the United States seeks an order modifying the Order of the Special Master, which authorized Goodrich to conduct discovery through June 29, 2012 while imposing a stay on Goodrich's obligation to respond to discovery propounded by the United States until the United States has demonstrated full compliance with the Court's previous discovery orders. As set forth in this Court's prior order appointing the Special Master, all rulings by the Special Master shall be reviewed de novo by the Magistrate Judge. See Fed. R. Civ. P. 53(g)(3)(providing for de novo review); see also Order dated March 5, 2010 (“All rulings by the Special Master (whether findings of fact or legal conclusions) shall be reviewed de novo by the Magistrate Judge.”). (Dkt. No. 278). Any objections to the Magistrate Judge's review of the Special Master's ruling shall be made pursuant to the normally applicable rules. See Fed. R. Civ. P. 72(a). For the reasons stated below, the United States' Motion for Modification of the Special Master's March 21 Sanctions Order is DENIED.
II.
THE SPECIAL MASTER'S REPORT AND ORDER
In the March 21 Report, the Special Master identified numerous discovery violations by the United States, including (1) the EPA's repeated failure “to search for and produce documents according to the time table set by the Special Master in the July 6, 2011 Order,” (Report at 6); (2) the Department of Defense's failure to provide timely, substantive responses to interrogatories and to timely produce documents related to the Rialto Ammunition Back–Up Storage Point (“RABSP”), (id. at 11–21); (3) the EPA's inadequate production of Electronically Stored Information (“ESI”) in native format pursuant to Rule 34, (id. at 21–23); and (4) the EPA's failure to produce a timely privilege log and the inclusion of a significant number of non-privileged documents on the log ultimately produced. (Id. at 23–24). While the Special Master found that “the conduct of both the United States EPA and the United States DoD has been far below what one should expect from any party in discovery,” she did not find that the United States met the standard of willfulness sufficient to warrant terminating sanctions. (Id. at 25).
In light of the United States' repeated failure to comply with the Court's orders, however, the Special Master concluded that the discovery cut-off should be extended from February 29, 2012 to June 29, 2012 and the deadline for the exchange of expert reports from April 13, 2012 to August 10, 2012.[1] (Report at 34). Furthermore, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(iv), the Special Master ordered “a stay on Goodrich's obligations to respond to all discovery propounded by the United States until the United States has demonstrated that it has produced all documents and responded to all other discovery that has been the subject of Court Orders in this case.” (Id. at 35). The Special Master found that such sanctions were necessary to “make up for the egregiously late production of documents” by the United States and to “restore to Goodrich the position in relation to preparing its case for trial that it would have had if the United States had complied with the Orders of the Special Master, and this Court.” (Id. at 34).
III.
THE PARTIES' CONTENTIONS
*2 The United States contends that sanctions are unwarranted because it has “always acted in good faith to comply with discovery orders.” (Motion at 1). According to the United States, the record does not support the Special Master's findings but instead establishes that: (1) the United States' interpretation of the July 6 Order, while erroneous, was reasonable because the Order did not set out unequivocal requirements for compliance, (id. at 14–17); (2) Goodrich was not prejudiced by the timing of the supplemental productions, (id. at 17–19); (3) the EPA produced ESI in compliance with Rule 34 and the Court's Order, (id. at 19–21); (4) the United States has not violated any Order regarding production of its privileged documents, (id. at 21–22); and (5) the Special Master's Order does not comply with the limited authority granted by the District Judge to continue depositions past the discovery cut-off. (Id. at 11–12). The United States further argues that the unilateral bar on the United States' discovery is “fundamentally unfair” and contrary to public policy because (1) demonstrating strict compliance with the Court's prior discovery orders as a condition for lifting the bar is not specifically related to a “claim at issue” in the March 21 Order and constitutes an “impossible burden,” (id. at 22–23); (2) the sanction does not limit Goodrich to discovery pertaining to the late document productions, (id.at 24); and (3) the bar on discovery impairs the United States' ability to prepare its case, particularly because Goodrich has improperly refused to respond to discovery. (Id. at 12–13, 23).
As a gesture of “good faith,” however, the United States seeks only to modify, not reverse, the Special Master's Order. (Id. at 2, 24–25). Specifically, the United States requests three modifications: (1) a limitation on the scope of permissible discovery granted to Goodrich to depositions of witnesses whose depositions were noticed prior to March 1, 2012 concerning documents produced by the United Stated on or after December 15, 2011; (2) a limitation on the duration of the depositions to one calendar day for each deposition, consisting of a total of seven hours, including breaks, and a prohibition on Goodrich's ability to take any additional 30(b)(6) depositions absent an order from the Court pursuant to Rule 32(d); and (3) a lifting of the stay of the United States' discovery against Goodrich. (Dkt. No. 1437.1, Proposed Order, at 1–2).
Goodrich contends that because the Special Master did not order case-dispositive sanctions, it was unnecessary for the Special Master to make findings of bad faith and prejudice, as the United States argues. (Opp. at 1). According to Goodrich, the sanctions imposed by the Special Master were just because: (1) the only reasonable interpretation of July 6 Order required the United States to produce documents up to the date of production, which the United States failed to do, (id. at 11–17); (2) Goodrich was in fact prejudiced by the late production of over 86,000 pages of documents, many of which were critical, (id. at 17–19); (3) the United States' ESI production was not in a native format acceptable to the Goodrich, and the complete chart labeling productions by category of the requests was not produced until January 31, 2012, (id. at 19); and (4) the United States' privilege log was untimely and includes many documents improperly withheld that have yet to be produced. (Id. at 19–21).
According to Goodrich, the modifications proposed by the United States would impose an “unworkable restriction” on Goodrich's ability to obtain discovery and are unwarranted because the late productions have impaired Goodrich's ability to “conduct an organized and coherent discovery process.” (Id. at 21–23). Goodrich also argues that the bar on the United States' discovery is directly related to the core issue in the March 21 Order, i.e., that “Goodrich did not have sufficient time before the discovery cut-off to prepare for and complete the required discovery of the United States,” and ensures that the United States will not be able to force Goodrich to devote resources to other matters while Goodrich is trying to complete discovery. (Id. at 24). Finally, at the hearing, Goodrich contended that the District Judge's comments at the January 30, 2012 hearing authorized the Special Master to decide the propriety of any discovery past the then-applicable cut-off, subject to the District Judge's approval, without purporting to set any specific limitation on what particular discovery may be permissible.
IV.
FACTUAL BACKGROUND
*3 The record before this Court clearly demonstrates that the United States has on numerous occasions failed to comply with the Special Master's and this Court's discovery Orders and its obligations under the Federal Rules. Such failures include:
A. EPA Production Pursuant To The July 6 Report And Order
In the July 6 Report and Order, the Special Master largely rejected the United States' contentions that Goodrich's production requests were improper or overbroad. The Special Master also pointedly rejected the United States' request that a specific cut-off date, such as the date the complaint was filed, be placed on the requests because “the actions of the EPA which involve the investigation of the alleged contamination and enforcement of the clean-up of the Rialto-Colton basin are continuing.” (Dkt. No. 824 at 30). Consequently, the Special Master ordered the United States to produce “all non-privileged documents ordered to be produced for each request as of the time of production” by August 18, 2011. (Id.) (emphasis added). The United States appealed the Order, but did not request a stay pending appeal. (Report at 6). The Magistrate Judge upheld the Order in its entirety on August 25, 2011. (Dkt. No. 941). Despite the deadline set by the July 6 Order, and as further discussed in Part V.A below, between September 15, 2011 and January 12, 2012, the EPA produced at least 86,755 pages of documents that were created before the issuance of the July 6 Order that should have been produced by August 18, including a critical set of Preliminary Assessment and Site Investigation Reports. (Report at 6).
B. The Department Of Defense's Responses Relating To The RABSP
Goodrich propounded interrogatories regarding the identification of Army personnel at the RABSP between 1941 and 1946 and the Army's use of TCE at the RABSP. (Report at 12). The DoD's responses were verified by two attorneys, whom Goodrich then sought to depose. (Id. at 12–13). The DoD objected and identified three alternative witnesses to testify regarding the subject matter of the interrogatory responses. (Id. at 13). Their deposition testimony was inconsistent with the interrogatory responses and suggested that the DoD's responses were incomplete, inaccurate and improperly verified. Indeed, two of the non-attorney witnesses identified by the DoD stated that even though they were experts in the fields covered by the interrogatories, they were not consulted by the DoD attorneys who prepared and verified the responses. (Id.). Nonetheless, the DoD refused to supplement its responses or to find non-attorneys to verify its responses. (Id. at 14). After the Special Master ruled that the attorneys who verified the responses could be deposed, the DoD asserted privilege objections during their depositions.[2] (Id.). By improperly using attorneys to verify its interrogatory responses, the DoD impaired Goodrich's ability to obtain information about the identification of Army personnel and TCE use at the RABSP that Goodrich was clearly entitled to obtain.
*4 Goodrich also sought documents concerning the personnel who served at the RABSP and historical RABSP operations. (Report at 16–20). Many of the documents responsive to these production requests were stored in the National Archives and Records Administration (“NARA”). (Id. at 16). Although the DoD had superior knowledge about the existence, location and organization of its documents in NARA, it did not disclose that information to Goodrich. Rather, the DoD repeatedly insisted that any such documents were publicly available and equally accessible to Goodrich. (Id.). After several Orders from the Special Master and a November 2011 Order from the Magistrate Judge requiring the DoD to search its records in NARA, the DoD produced a significant number of documents in January and February 2012, including key documents such as contracts relating to the ownership of equipment and materials at the RABSP.[3] (Id. at 18–20). The United States attempted to justify its late production by explaining that many of the documents had to be declassified before they could be produced, thereby completely undermining the DoD's previous representations that the documents were publicly available and equally available to both sides in this matter. (Id. at 20).
C. ESI Production
The Special Master, the Magistrate Judge, and the District Judge all ordered the EPA to produce ESI either labeled by the categories in the request or as the documents are kept in the ordinary course of business. (Report at 21). It is unclear whether the EPA's native file production ever fully met the obligation under Rule 34 to produce materials as they are kept in the ordinary course. (Id. at 22). Nonetheless, the EPA ultimately produced documents in a native format, after months of claiming that it could not do so without compromising its ability to withhold privileged and non-responsive documents. (Id.). After October 28, 2011, the United States “routinely” labeled documents to correspond to the categories in the request and “ultimately” provided a chart labeling its prior productions by the categories in the request. (Motion at 19–20). However, it did not produce a complete chart of its prior productions until January 31, 2012. (Opp. at 19).
D. EPA's Privilege Log
The Special Master required the EPA to produce a privilege log by July 15, 2011. (Report at 23). On that date, it submitted an inadequate and incomplete log, which it eventually corrected. (Id.). The EPA withheld approximately 13,000 documents pursuant to the log. (Id.). On its own, the United States reviewed approximately 500 of the withheld documents to verify the accuracy of the privilege assertion and on February 27, 2012, just before the cut-off, produced 105 them after determining that they were not privileged. (Id.). The Special Master is reviewing 250 documents to determine if the EPA's claims of privilege are valid, and anticipates that it will be determined that between 10% and 25% of the documents are not in fact privileged. (Id. at 23).
V.
DISCUSSION
A. The United States Deliberately Violated The Special Master's July 6 Order
As noted above, the Special Master's July 6 Order, which was upheld in its entirety by the Magistrate Judge, required the EPA to produce “all non-privileged documents” responsive to the requests as framed by the Order “as of the date of production” by August 18, 2011. (Dkt. No. 824 at 30). On August 18, the United States produced a hard drive containing 130,888 pages, constituting 7,346 individual documents. (Sloan Decl., Dkt. No. 1235.35 at 13 ¶ 39). Despite the August 18 production deadline, the United States continued to produce responsive documents throughout the fall of 2011 and into January 2012. Between September 15, 2011 and January 12, 2012, the United States produced an additional 86,755 pages of documents—66% of the size of the August 18 production—that were created before the July 6 Order but were not included in the August 18 production. (Id. at 31 ¶ 78; Report at 6).
The United States repeatedly contends that the Special Master's July 6 Order did not unequivocally notify the EPA of the requirements for compliance because it “did not provide any notice of a requirement to update EPA's searches through a particular date” or “specify a deadline for the general duty to supplement.” (Motion at 14). This contention, which strains credulity, is unavailing. The July 6 Order plainly stated:
*5 While the actions of the parties which the EPA has sued in this case may have ended before or at the time of the filing of the complaint, the actions of the EPA which involve the investigations of the alleged contamination and the enforcement of the clean-up of the Rialto–Colton basin are continuing. Therefore, the Special Master concludes that the United States mu[st] produce all non-privileged documents ordered to be produced for each request as of the time of production and must conform to the requirements of Rule 26(a) regarding the supplementing of these responses.”
(Dkt. No. 824 at 30) (emphasis added). Parties are expected to give a reasonable interpretation to court orders. The Special Master's Order requiring the United States to produce “all non-privileged documents” responsive to the requests “as of the time of production” was not ambiguous.
The EPA appears to have deliberately delayed collecting, reviewing, and producing documents pursuant to the July 6 Order. For example, after the July 6 Order issued, the Justice Department searched its database of previously-collected documents using additional search terms to ensure that all responsive documents were produced. However, these documents were not produced until October 28, 2011, more than two months after the deadline. (Dkt. No. 1340 at 11). EPA Region 9 also searched its collection of documents, but did not even deliver them to the Department of Justice for review until October 18, 2011. (Id.). The EPA waited until after the Magistrate Judge's ruling on August 25 to begin collecting documents responsive to the perchlorate requests from EPA Regions 1–8 and 10, and the EPA's national laboratories, and similarly did not deliver them to the Department of Justice for review until October 24, 2011. (Id.). These documents were not produced until November 23, 2011. (Id.). Notably, the EPA did not produce a set of critical documents held in Region 9 Headquarters, Preliminary Assessment and Site Investigation Reports about Rialto–Colton, until a rolling production took place between December 29, 2011 and January 12, 2012. (Report at 11).
Even though the Special Master's Order required production “as of the date of the production,” the United States waited until late 2011 and early 2012 to search, collect, review and produce any documents that were generated after the first searches for documents were complete. (Id. at 12–13). For example, the United States did not deliver supplemental documents from Region 9 to the Department of Justice for review until December 21, 2011, and did not produce them until January 2012. (Id. at 13). Even though the initial production of documents from EPA Headquarters went through only December 2010, the EPA did not begin collecting documents created after that date until November 2011, and did not deliver them to the Department of Justice until the end of December 2011. (Id.). These documents were not produced until January 2012. (Id.). Between December 29, 2011 and January 30, 2012, the EPA ultimately produced approximately 11,000 documents, totaling approximately 100,000 pages, with only one month remaining before the discovery cut-off.[4] (Report at 9). If the United States needed additional time to comply with the Special Master's July 6 Order, the United States needed to seek relief from the Special Master. Instead, the United States simply created its own schedule, ignoring the Special Master's Order.
B. The Sanction Issued By The Special Master Is Just And Specifically Related To The Claims At Issue In The March 21 Order
*6 “Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery or with court orders enforcing those rules,” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 857, 589 (9th Cir. 1983), “regardless of the reasons” for the failure to comply. Worldcom Network Services, Inc. v. Metro Access, Inc., 205 F.R.D. 136, 143 (S.D. N.Y. 2002). “[T]he culpability of a party who fails to comply with a court order determines only which sanctions the court should impose and not whether any sanctions are appropriate at all. The simple failure to comply is enough, notwithstanding a complete lack of culpability on [the sanctioned party's] part.” Halas v. Consumer Services, Inc., 16 F.3d 161, 165 (7th Cir. 1994) (internal quotation marks and citations omitted); see also Weisberg v. Federal Bureau of Investigation, 749 F.2d 864, 871 (D.C. Cir. 1984) (“[M]ere failure to respond to discovery is sufficient to justify less severe sanctions.”). Indeed, “sanctions may be imposed even for negligent failures to provide discovery.” Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1343 (9th Cir. 1985). Moreover, “[b]elated compliance with discovery orders does not preclude the imposition of sanctions” as the “[l]ast-minute tender of documents does not cure the prejudice to opponents.” North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986).
“An award of sanctions under Rule 37 should effectuate its three purposes: (1) ensuring the disobedient party does not benefit from non-compliance; (2) obtaining compliance with discovery orders; and (3) providing a general deterrent in the particular case and litigation in general.” United Consumers Club, Inc. v. Prime Time Marketing Management Inc., 271 F.R.D. 487, 501 (N.D. Ind. 2010) (internal quotation marks omitted); see also Cochran Consulting, Inc. v. Uwatec USA, Inc., 102 F.3d 1224, 1236 (5th Cir. 1996)(“The purpose of sanctions under Rule 37(b)(2) is not to reward parties who comply with discovery orders, but to punish those who do not and to deter others similarly situated.”) (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S. Ct. 2778, 2781, 49 L.Ed. 2d 747 (1976)). While the court has broad discretion to fashion an appropriate sanction, “[a]n award of sanctions must be proportionate to the circumstances surrounding a failure to comply with discovery.” Langley by Langley v. Union Elec. Co., 107 F.3d 510, 515 (7th Cir. 1997) (internal citations omitted). According to the Supreme Court, two standards must guide the exercise of the court's discretion: “First, any sanction must be ‘just’; second, the sanction must be specifically related to the particular ‘claim’ which was at issue in the order to provide discovery.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S. Ct. 2099, 72 L.Ed. 2d 492 (1982); Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1546 (9th Cir. 1988) (same).
In determining which sanctions to impose under Rule 37, a district court may consider several factors. The Ninth Circuit applies a five-part test to determine whether a case-dispositive sanction under Rule 37(b)(2) is just: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). However, when, as here, neither dismissal nor issue preclusion is at issue, such a showing is not required. Indeed, “a party need not always be prejudiced by its opponent's discovery abuses prior to the imposition of sanctions.” Chilcutt v. United States, 4 F.3d 1313, 1324 n.30 (5th Cir. 1993); see also Southern New England Telephone Co. v. Global NAPs Inc., 624 F.3d 123, 148–49 (2d Cir. 2010) (rejecting a “ ‘no harm, no foul’ standard for evaluating discovery sanctions” because even though “one purpose of Rule 37 sanctions may in some cases be to protect other parties to the litigation ... Rule 37 sanctions serve other functions unrelated to the prejudice suffered by individual litigants”) (emphasis in original). “[L]esser sanctions may be imposed without a showing of prejudice.” F.D.I.C. v. Conner, 20 F.3d 1376, 1381 n.3 (5th Cir. 1994).
*7 The sanction imposed by the Special Master—authorizing Goodrich to conduct discovery for an additional four months while staying Goodrich's obligation to respond to discovery propounded by the United States until the United States certifies that it is in full compliance with the Court's prior discovery orders—is both just and specifically related to the violations at issue in the March 21 Report and Order. It is, in fact, the least severe sanction considered by the Special Master.
Contrary to the United States' argument, the Special Master was not required to find that the United States acted in bad faith or that Goodrich was prejudiced by the United States' repeated failures to comply with discovery orders. Halas, 16 F.3d at 165; Chilcutt, 4 F.3d at 1324 n.30. For the reasons stated above, while the EPA and DoD's massive late productions appear to be due at least in part to willful disregard of the Court's Orders, the Court need not reach that conclusion because the sanction at issue here does not involve dismissal or issue preclusion for willful misconduct. Furthermore, even if the December 2011 and January 2012 productions included some duplicative or recently-created documents, it cannot be reasonably disputed that they also included tens of thousands of pages of documents that should have been produced earlier and that these late productions impaired Goodrich's ability to implement an organized and coherent discovery plan.
The United States argues that the authorization for Goodrich to conduct discovery is unfair and overbroad because it permits “apparently unbounded additional discovery ... that does not relate to the asserted prejudice caused by the timing of productions” and exceeds the scope of the District Judge's authorization for post-cut-off discovery. (Motion at 3). The Court disagrees. At a hearing held on January 30, 2012, Judge Gutierrez stated that he would “give the special master the authority to extend [the discovery cut-off date] subject to [his] review ... to March 30th for any depositions that the special master deems have not been completed because of maybe some discovery violations.” (Dkt. No. 1264 at 16–17). Judge Gutierrez's authorization for the Special Master “to extend the date to March 30” was of course predicated on the then-applicable discovery cut-off of February 29, which has since been moved to June 29, 2012. (Dkt. No. 1432 at 3). Furthermore, Judge Gutierrez did not state that additional discovery could not proceed unless Goodrich could show that each question at a deposition specifically concerned a late-produced document, but rather, that the Special Master had the authority to determine whether, due to the United States' discovery violations, Goodrich was unable to complete any depositions, and to permit additional depositions to go forward.
Besides being largely unworkable and impracticable, the United States' proposal that additional depositions be limited solely to questions about late-produced documents too narrowly defines the claims “at issue in the order to provide discovery.” Insurance Corp. of Ireland, 456 U.S. at 707. The discovery abuses by the United States, including, but not limited to, its voluminous and late productions in violation of the July 6 Order, impaired Goodrich's ability to conduct an organized and comprehensive discovery plan. That harm would not be rectified by restricting Goodrich's discovery to questions directly tied to specific late-produced documents. In fact, such a restriction would reward the United States for its non-compliance by preventing Goodrich from addressing the evidence produced by the United States as a whole. Goodrich was entitled to design a discovery plan based on the entirety of the documentary evidence the United States should have timely produced. Late-produced documents may shed a new light on documents and issues previously addressed, which Goodrich should be allowed to freely revisit without first establishing a link with the late production. Had the documents been timely produced, such questioning would have been part of any party's routine discovery practice. Therefore, sanctions permitting Goodrich to conduct discovery without restriction are both just and specifically related to the claims at issue in the Order to provide discovery.
C. The United States Has Failed To Show Prejudice From The Bar On Its Discovery
*8 Despite the United States' claim that the temporary bar on its discovery is “unjust and improper,” the United States has not shown that is it prejudiced by the bar in any significant way. (Motion at 4). The United States can cause the bar to be lifted at any time by certifying that it has “produced all documents and responded to all other discovery that has been the subject of Court Orders in this case.” (Report at 35). There is nothing extraordinary about requiring a litigant to comply with discovery orders; indeed, compliance with court orders is expected and required of all parties in a lawsuit. Furthermore, it is entirely within the United States' control to demonstrate compliance. The United States stated at the hearing that it will be prepared to make that demonstration to the Special Master by June 15, 2012. While the Court appreciates that the United States is attempting to be “careful and thorough” before certifying that it has fulfilled its discovery obligations, any delay in making that certification is entirely a function of the resources the United States has chosen to devote to this task. Additionally, when asked by the Court what specific discovery the United States required to complete its preparation of its case, counsel identified extremely limited discovery, i.e., two depositions and responses to certain pending written discovery. Even assuming that the United States waits until June 15 to make its certification, two weeks is ample time to complete two depositions and the remaining written discovery. The United States failed to show any prejudice from the Special Master's Order.
VI.
CONCLUSION
For the reasons stated above, the United States' Objections to and Motion for Modification of the Special Master's March 21 Sanctions Order Order is DENIED. IT IS SO ORDERED.
Footnotes
On April 4, 2012, the District Judge signed a stipulated amendment to the Court's Scheduling Order extending the fact discovery cut-off to June 29, 2012 and the deadline for the exchange of expert reports to August 13, 2012. (Dkt. No. 1432 at 3–4).
The Court makes no finding about the propriety of the DoD's objections, but notes that if the interrogatories had been properly verified by non-attorneys, those witnesses could have immediately answered factual questions without concern for privilege.
According to the Special Master, the DoD has produced “at least 100,000 pages since January 20, 2012,” including the key documents described above. (Report at 12).
As previously noted, the DoD also produced “at least 100,000 pages since January 20, 2012,” including many key contracts and other documents. (Report at 12).