MEMORANDUM & ORDER

*1 This is a Section 1983 case stemming from the purported rape of Plaintiff David Campos by another inmate at the Webb County jail. (Dkt. No. 64). Before the Court is Plaintiffs’ “Second Motion for Sanctions” (Dkt. No. 77) against Defendant Webb County, who is alleged to have committed several violations of the Federal Rules of Civil Procedure as part of the discovery process. Plaintiffs seek sanctions in several forms, ranging from the imposition of fines to the striking of Defendant’s pleadings. (Id. at 14). Defendant generally opposes Plaintiffs’ motion. (Dkt. No. 84). However, during hearings held in relation to this motion, Defendant did acknowledge several of its shortcomings during discovery. These shortcomings were attributed to carelessness and honest mistakes, rather than bad faith as insisted upon by Plaintiffs.

Having considered the matter, it is the Court’s opinion that Defendant should be subject to sanctions for its violations of the discovery rules. Nonetheless, the Court does not find that these violations were willful, and thus sanctions on the level of striking Defendant’s pleadings are unwarranted. Accordingly, Plaintiffs’ motion will be granted but only to the extent they seek some lesser form of sanctions against Defendant.

Background

The claimed discovery violations at issue concern what can be divided into two sets of discoverable material. The first includes a statement by and the address of the inmate who is alleged to have committed the rape, a Juan Velasquez, as well as statements by and the addresses of several other inmates who were possible witnesses to the incident. The second is a jailhouse audio recording of David Campos speaking to his mother and grandmother about his treatment by the other inmates, and according to Plaintiffs, the rape itself. Generally, Plaintiffs argue that Defendant violated the discovery rules by failing to turn over these materials as part of their initial disclosures, and by later failing to timely discover them in response to interrogatories and requests for production. The Court will first address its findings as to the discovery of the written statements, followed by its findings as to the audio recording.

I. Written statements

The following concerns the discovery of the inmates’ statements and addresses, and is based in part on the testimony of two witnesses, Commander Jose “Pepe” Salinas, who oversees the daily operations for the Webb County jail, and Sgt. Silvia Morales, an investigator with the Webb County Sheriff’s Office who conducted a criminal investigation of the rape allegations.[1]

*2 The allegations of David Campos’ rape appear to have first surfaced sometime in July of 2011. Upon learning of these allegations, following protocol, Commander Salinas contacted a Commander J.J. Rendon, the officer in charge of the Sheriff’s Office investigators. (Aug. 23rd Hr’g at 3:04-3:05 p.m.). In August of 2011, Commander Rendon tasked Sgt. Morales with investigating the rape allegations. (Id. at 3:05 p.m.; Sept. 5th Hr’g at 2:08-2:010 p.m.). A preliminary step in Sgt. Morales’ investigation was to obtain Juan Velasquez’ address from the jail records, as well as the names and addresses of the former detainees who shared a cell with Velasquez and David Campos.[2] (SeeSept. Hr’g at 2:17-2:18 p.m.). Sgt. Morales then began the process of tracking down Velasquez and the others so she could interview them regarding the incident in question. (Id. at 2:18-2:19 p.m.). Complicating this process, many of the detainees had apparently provided inaccurate addresses and contact information. (Id. at 2:44-2:45 p.m.). Also, many appeared to have left the country, presumably to Mexico. (Id. at 2:19 p.m.). Ultimately, of the 30 or so detainees she attempted to find, Sgt. Morales was able to obtain statements from only Velasquez and four others. (Id. at 2:18-2:19 p.m.).

The instant suit was filed in January of 2012.[3] (Dkt. No. 1). In February of 2012, Sgt. Morales interviewed Velasquez and took his written statement. (Dkt. No. 78 at 79-80). Velasquez essentially denied the rape allegations. (See id.). Later in February, Sgt. Morales obtained statements from a Gilberto Mata (Dkt. No. 88 at 1-2) and a Victor Quintero (id., Attach. 1 at 1-2). Both denied that there were ever any problems between David Campos and Velasquez. However, Quintero did note in his written statement that the two “[were] always horse playing[,] acting gayly [sic] and Campos was always acting gay.” (Id. at 1). Quintero also noted that “Campos [wore] his shirt like [a girl] bra[,] he was modeling for all the [tank].” (Id.).

According to Sgt. Morales, soon after obtaining the statements, possibly that same February of 2012, she met with Commander Rendon and Commander Salinas and updated them as to her investigation. (Sept. 5th Hr’g at 2:22, 2:27 p.m.). She also claims to have provided Commander Salinas with copies of the above statements. (Id. at 2:25, 2:30-2:31, 2:35-2:36 p.m.). Commander Salinas, however, has a different recollection. According to Commander Salinas, he did not become aware of the statements until Sgt. Morales, based on procedure, turned them over to the Webb County Attorney’s Office.[4] (Aug. 23rd Hr’g at 3:00-3:01, 3:09, 3:12 p.m.).

On April 30, 2012, in compliance with the Court’s scheduling order, the parties made their initial disclosures. (Dkt. Nos. 12, 13, 14). While Defendant’s disclosures listed several jail personnel and Jose Velasquez as witnesses having knowledge of the relevant facts pertaining to the lawsuit, no reference was made to Gilberto Mata and Victor Quintero. (See Dkt. No. 14). Furthermore, Defendant failed to provide the written statements of any of these cellmates. (Dkt. No. 77 at ¶ 14; Dkt. No. 87 at ¶¶ 3-4).

Also in April of 2012, Plaintiffs served Defendant with written interrogatories and requests for production. (Dkt. No. 77 at ¶¶ 23, 25). In relevant part, the interrogatories asked Defendant to “[i]dentify every person with knowledge of relevant facts [by] name and aliases, date of birth, [and] last known address ....” (Id., Attach. 8 at 5). The production requests included a request for any “statements taken or received which pertain in any way to the arrest, incident, allegations, injury, treatment, or damages in question.” (Id., Attach. 9 at 5).

Defendant responded to Plaintiffs’ discovery requests the following month, in May of 2012. (Id., Attachs. 8, 9). In answering the above interrogatory, Defendant listed Jose Velasquez but claimed that his address was unknown. (Id., Attach. 8 at 5-6). No mention was made of any other cellmates. Commander Salinas signed an affidavit supporting the veracity of the interrogatory responses. (Id. at 8). As to the production request, Defendant made no mention of the cellmates’ written statements obtained by Sgt. Morales. Of important note, although Ms. Molly Higgins Santos, Assistant Webb County Attorney, represents that she did not receive Velasquez’ statement until after Defendant’s discovery responses were due (Dkt. No. 84 at 3), her notes indicate that she did have a conversation about this case in May of 2012 with Sgt. Morales (see Aug. 23rd Hr’g at 3:31 p.m.).

*3 Nonetheless, while discovery in this case progressed, Sgt. Morales continued with her investigation. In September of 2012, she obtained two more written statements, one from an Andrew Batey (Dkt. No. 88, Attach. 2) and the other from a Gerardo Chavez (id., Attach. 3). Both of these former detainees claimed that they could not recall any sexual assault occurring in the jail cell. According to Sgt. Morales, she met with Commander Salinas and provided him with copies of these statements at or near the time they were obtained. (Sept. 5th Hr’g at 2:30-2:32, 2:35 p.m.). Again, this is in conflict with Commander Salinas’ belief that Sgt. Morales would have turned over the statements to counsel. Nonetheless, Ms. Higgins Santos indicates that she had these two statements as of October of 2012. (Aug. 23rd Hr’g at 3:31 p.m.).

Discovery came to a close on June 10, 2013. (Dkt. No. 62). Three days before this deadline, Defendant supplemented its disclosures and provided Plaintiffs with Jose Velasquez’ address and his written statement.[5] (Dkt. No. 77 at 6; Dkt. No. 78 at 1-2, 79-80). However, the statements of the four other cellmates would not be produced until later.

On July 11, 2013, Plaintiffs filed the instant motion for sanctions. (Dkt. No. 77). Thereby, they requested a hearing, which the Court scheduled for August. (Dkt. Nos. 85, 86). In anticipation of the hearing, on August 14, 2013, Plaintiffs attempted to subpoena Sgt. Morales as a witness. (Dkt. No. 89). The following day, Defendant supplemented its disclosures again, providing the written statements of Mata, Quintero, Batey, and Chavez. (Dkt. No. 88).

II. Audio recording

The following concerns the discovery of the jailhouse audio recording, and is based on the testimony of Commander Salinas and a correctional officer who handles intelligence at the Webb County jail.[6]

According to the jail’s visitation logs, in July of 2011, David Campos received a visit by his mother and grandmother. (See Aug. 23rd Hr’g at 2:44-2:46 p.m.). Their conversation took place over a prison visitation phone system. (Id. at 2:37-2:38 p.m.). As per jail policy, the conversation was recorded.[7] (Id. at 2:36-2:37 p.m.). The recording was then electronically stored on a computer server, like all other visitation recordings, for its potential future use. (Id. at 2:39, 2:42 p.m.).

As already discussed, the instant suit was filed the following January, and initial disclosures were exchanged in April of 2012. As part of its initial disclosures, Defendant provided a copy of the visitation log. (See Dkt. No. 14 at 3). However, no mention was made in Defendant’s initial disclosures of the recorded conversation. Similarly, no mention was made of the recording in May of 2012, when Defendant filed its response to Plaintiffs’ production request for, amongst other things, “audio recordings ... pertain[ing] in any way to the subject matter of this suit.” (Dkt. No. 77, Attach. 9 at 3, 5).

According to the jail’s intelligence officer, in August or September of 2012, the jail switched to a web-based platform for the storage of visitation audio recordings. (Sept. 5th Hr’g at 3:02-3:05, 3:09 p.m.). In seeming contradiction, Commander Salinas referred to server-related technical difficulties occurring at the time he verified Defendant’s discovery responses in May of 2012. (Aug. 23rd Hr’g at 2:39-2:40, 2:50-2:51, 2:54, 3:20 p.m.). Nonetheless, the recording at issue remained stored on an old server, which was set aside and kept on-site at the jail. (Sept. 5th Hr’g at 3:05 p.m.).

*4 In early May of 2013, the jail’s intelligence officer was asked by Commander Salinas to retrieve the recording at issue from the old server (Sept. 5th Hr’g at 2:59, 3:01, 3:08-3:09 p.m.), so the officer contacted Securus, the communications company administering the jail’s servers (id. at 2:54-2:55 p.m.). Prior to that, Securus had made several attempts to access data from the old server, but this particular server’s data-storage platform complicated the matter. (Id. at 3:02, 3:05-3:06 p.m.). It was not until late May of 2013 that Securus would resolve the data-collection issue. (Id. at 3:01, 3:05-3:06 p.m.).

Around May 27, 2013, Ms. Higgins Santos was in a meeting with Commander Salinas on an unrelated matter. (Dkt. No. 84 at 4). According to Ms. Higgins Santos, at this meeting, Commander Salinas mentioned the audio recording to her for the first time, despite his prior participation in responding to Plaintiffs’ initial production request. (Id.). The audio recording was delivered to the Webb County Attorney’s Office on May 30, 2013. (Id.; Aug. 23rd Hr’g at 2:57-2:58 p.m.). Ms. Higgins Santos then had a transcription of the recording translated from Spanish to English. (Dkt. No. 84 at 4; Aug. 23rd Hr’g at 2:06-2:07 p.m.). Defendant produced the recording and transcript on June 7, 2013, three days before the close of discovery. (Dkt. No. 77 at ¶ 15; Dkt. No. 78 at 11-52).

Discussion

Against this background, the Court must now discuss whether Defendant did indeed violate the Federal Rules of Civil Procedure during the discovery process. If so, the Court must determine what form of sanctions is appropriate. These issues will be discussed in turn.

I. Discovery violations

A. Legal Standard

The discovery rules at play are rather straightforward. Rule 26 of the Federal Rules of Civil Procedure governs initial disclosures. Generally, subject to initial disclosure are “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses....” Fed. R. Civ. P. 26(a)(1)(A)(i). Also subject to disclosure is “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party ... may use to support its claims or defenses ....” Fed. R. Civ. P. 26(a)(1)(A)(ii). Interrogatories and requests for production are governed by Rules 33 and 34, respectively. The time to respond to interrogatories and production requests is generally 30 days. See Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). However, during the discovery process, disclosures and discovery responses are subject to supplementation. Supplementation must occur “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....” Fed. R. Civ. P. 26(e)(1)(A).

B. Analysis

Here, it is the Court’s conclusion that Defendant violated the discovery rules.

1. Written statements

Rule 26 called for the initial disclosure of the address and written statement of Jose Velasquez, as well as the names, addresses, and statements of Gilberto Mata and Victor Quintero. Defendant’s position is that David Campos was not raped at the jail, and these three cellmates—even Quintero—essentially deny that the rape occurred.[8]Indeed, Velasquez is listed as a witness in support of Defendant’s position. A separate issue is whether Defendant was in possession of the above information when disclosures were due. In this regard, the Court notes that Sgt. Morales had managed to track down Velasquez, Gilberto, and Mata two months prior.

*5 Regardless of the disclosure issue, it is uncontested that the cellmates’ statements were responsive to Plaintiffs’ discovery requests for the identity of those with knowledge of the relevant facts and for any statements pertaining to the allegations at issue. With respect to Defendant’s knowledge and possession of these statements, there is some confusion regarding the identity of the person who received the statements from Sgt. Morales. However, it makes little difference whether the statements were received by Commander Salinas or directly by Ms. Higgins Santos. When the discovery responses were due in May of 2012, it appears that Commander Salinas and counsel were at least aware of Sgt. Morales’ investigation, which should have spurred a specific inquiry into what the investigation had uncovered. Furthermore, they were both responsible for the discovery responses—Commander Salinas as the person who certified their veracity, and Ms. Higgins Santos as an officer of the Court.

The timely supplementation of the above information presents another concern. The fact that any discovery related to Velasquez, Mata, and Quintero was incomplete and incorrect should have been apparent at the latest since May of 2012, when Ms. Higgins Santos concedes she spoke to Sgt. Morales. However, Defendant did not supplement its discovery with Velasquez’ statement for more than a year—only three days before the end of discovery. Furthermore, Defendant did not supplement with the statements of Mata and Quintero for more than two months after the close of discovery. The statements of Andrew Batey and Gerardo Chavez would also be produced after the discovery deadline, despite the fact that Ms. Higgins Santos had learned of their existence sometime in October of 2012.

2. Audio recording

Rule 26 also called for the initial disclosure of the audio recording. In the recording, David Campos denies that he was actually abused (Dkt. 78 at 38-39), which would support Defendant’s case.[9] Defendant was also aware of and in possession of this recording when disclosures were due. Commander Salinas may claim that the recording could not be retrieved from the jail’s server at this time because of the switch in platform. On this point, however, the Court finds the jail’s intelligence officer, as the recording’s custodian, to be the more reliable witness. While disclosures were due in April of 2012, the intelligence officer testified that any server-related issues did not occur until several months later. Even assuming that the recording could not have been retrieved in April of 2012, the text of Rule 26required at the very least a description of the recording’s location.

To the extent it was not subject to initial disclosure, the recording should have been produced in May of 2012 as a response to Plaintiffs’ request for audio recordings pertaining to the suit. Defendant argues that no discovery violation occurred because it objected to the request on grounds of over breadth. (Dkt. No. 84 at 4). However, this argument is without merit. According to Rule 34, relating to requests for production, a responding party must state in writing what documents will be produced, and any objection to part of a request must specify that part but permit inspection of the rest. See Fed. R. Civ. P. 34(b)(2)(B), (C); see also Sewell v. D’Alessandro & Woodyard, Inc., 2011 WL 1232347, at *1 (M.D. Fla. March 30, 2011). Indeed, Defendant does not deny that the recording is responsive to Plaintiffs’ production request.[10]

*6 With regards to supplementation, Defendant notes that it produced the recording before the discovery deadline and only one week from the date it was received by the Webb County Attorney’s Office. However, this does not mean that Defendant’s production of the recording was necessarily timely. As discussed, Commander Salinas, who participated in preparation of Defendant’s responses to the production requests, was well aware of the recording’s existence before May of 2012 when production responses were due. Again, any claims that the recording was not accessible at this time are simply not as reliable as the intelligence officer’s testimony supporting otherwise.

II. Sanctions

Having determined that Defendant violated the discovery rules, the Court must now determine the appropriate level of sanctions.[11]

A. Legal Standard

Sanctions for discovery violations are governed by Rule 37. The court, on motion and after giving an opportunity to be heard, may impose a range of sanctions if a party fails to disclose information or to supplement. Fed. R. Civ. P. 37(c)(1). For instance, a party may be ordered to pay the reasonable expenses, including attorney’s fees, caused by the failure. Fed. R. Civ. P. 37(c)(1)(A). A party’s pleadings are even subject to being stricken. Fed. R. Civ. P. 37(b)(2)(A)(iii); Fed. R. Civ. P. 37(c)(1)(C).

Nonetheless, extreme sanctions such as those involving the striking of pleadings are only appropriate where at least two criteria are met. First, the penalized party’s discovery violation must be willful. Plasticsource Workers Committee v. Coburn, 283 F. App’x 181, 184 (5th Cir. 2008) (citing Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1988)). Second, the drastic measure may only be employed where a lesser sanction would not achieve the desired effect. Plasticsource, 283 F. App’x at 184 (citing Smith, 145 F.3d at 344). Courts may also consider whether the opposing party was prejudiced by the discovery violation, and whether the violation can be blamed on the client. Plasticsource, 283 F. App’x at 184 (citing Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir. 1985)).

B. Analysis

In support of their sanctions motion to strike Defendant’s pleadings, Plaintiffs point to several circumstances as evidence of willfulness. Despite having located Velasquez, Defendant initially listed his address as unknown, and his written statement was not produced until the discovery deadline. The statements of the other four cellmates were only produced when Sgt. Morales, the person who took those statements, was subpoenaed to appear for a sanctions hearing. As for the audio recording of David Campos, this was produced at the close of discovery, even though it was accessible to Defendant when discovery began.

*7 Plaintiffs also argue that the untimely discovery prejudiced their deposition strategy. For one, they would have attempted to locate and conduct the deposition of Victor Quintero, who corroborated a claim by David Campos that he was made to dress like a woman and dance for the other inmates. Plaintiffs also assert that, with this and the rest of the discovery in hand, they would have been able to conduct more effective depositions of the jail officials, all of whom claimed that rape does not occur at the jail.

According to Ms. Higgins Santos, however, any discovery violations were not made in bad faith and were instead pure oversights caused by her heavy workload. (Sept. 5th Hr’g at 4:03-4:04 p.m.). Regarding why the cellmate statements were produced separately, Ms. Higgins Santos explains that in the midst of supplementing discovery she most likely became distracted by the voluminous discovery in another case. (Id. at 3:43-:3:44, 4:03-4:04 p.m.). Upon conducting an evaluation of Defendant’s discovery responses, she realized that the four cellmates’ statements had not been produced. (Id.). To the extent that these four statements were produced after Sgt. Morales was subpoenaed, this was supposedly mere coincidence. (Id. at 3:43-3:44 p.m.).

Here, while the record may demonstrate that Defendant has taken a neglectful and lackadaisical approach towards the discovery process, this falls short of the willful discovery violations necessary to impose sanctions in the most extreme of forms. Indeed, Plaintiffs’ arguments in support of willfulness are not entirely logical. Willfulness would seem more likely had the Sheriff’s Office waited until after the discovery deadline to inform Ms. Higgins Santos about the discovery at issue, especially the written statement of Quintero and the audio recording—the only two items of untimely discovery that can arguably be said to support David Campos’ claims of rape. However, it is uncontroverted that the Sheriff’s Office, in one form or another, discussed the discovery at issue with Ms. Higgins Santos, who disclosed at least Velasquez’ statement and the audio recording before the discovery deadline. Although the production of Quintero’s statement came after the close of discovery, this hardly establishes willfulness given that the statement was produced, not by itself, but with three other statements that support Defendant’s case. Ms. Higgins Santos’ claim regarding the coincidental release of the four cellmate statements is further corroborated by Sgt. Morales’ testimony that she did not contact the Webb County Attorney’s Office about the attempts to subpoena her. (Sept. 5th Hr’g at 2:37-2:39 p.m.). As for the late production of the audio recording, this appears to be the result of nothing more than Commander Salinas’ lack of appreciation—or lack of training—regarding the strictures of the discovery process.

In terms of prejudice, it is likely that Plaintiffs’ deposition strategy was affected by Defendant’s discovery violations. Nonetheless, given that this case is still in the pretrial stage, any prejudice can be easily cured by re-opening discovery to Plaintiffs and holding Defendant responsible for any reasonable expenses, including attorney’s fees, caused by its violations.[12] The Court is confident that such is sufficient to secure Defendant’s future compliance with its discovery obligations.

*8 That said, the Court notes that as of the date of the final hearing held in this matter, Defendant had yet to produce discoverable material, specifically, the entirety of Sgt. Morales’ investigative file. (Id. at 4:02-4:03 p.m.). Moreover, although Defendant had produced the names of David Campos’ cellmates (Dkt. No. 96 at 5-8), it had failed to produce the cellmates’ addresses, presumably because their accuracy could not be confirmed. To the extent it has not already done so, Defendant must turn over the investigative file, the inmates’ addresses on file (regardless of their accuracy), and any other discoverable material. Now that Defendant has been so warned and sanctioned, any subsequent discovery violations will be viewed with suspicion, or as the likely result of a willful attempt to conceal rather than accidental oversight.

Conclusion

Accordingly, the Court enters this amended scheduling order, which shall control disposition of this action pending further order. The following actions shall be completed by the dates indicated.

Image: https://ediscoveryassist.s3.amazonaws.com/uploads/images/SQAEJNQP_1.png

Furthermore, the following is hereby ORDERED:

(1) In accordance with the above scheduling order, Plaintiffs will be allowed to continue to conduct discovery in this matter, including but not limited to the taking of depositions.

(2) Should Plaintiffs re-depose any Webb County jail officials or personnel, the scope of such depositions must be limited to the contents of the untimely discovery at issue and any evidence developed therefrom. Defendant will be responsible for paying the reasonable travel expenses of Plaintiffs’ counsel associated with the taking of these depositions. Counsel for both parties must arrive at an agreeable deposition schedule tailored to minimize these travel expenses.
(3) Defendant will be responsible for paying Plaintiffs’ reasonable attorney’s fees associated with the filing of the “Second Motion for Sanctions” (Dkt. No. 77), the first supplement thereto (Dkt. No. 87), and the sanctions hearings held on August 23, 2013 and September 5, 2013.[13]

(4) Defendant will not be held responsible for any additional expenses and fees except upon a showing by Plaintiff that such expenses and fees would not have been incurred but for the underlying discovery violations.
(5) Should the parties be unable to agree on an amount of attorney’s fees, Plaintiffs should file with the Court documentary evidence in support of their requested fees consistent with the requirements discussed in Tollett v. City of Kemah, 285 F.3d 357 (5th Cir. 2002).

As such, Plaintiffs’ Motion (Dkt. No. 77) is hereby GRANTED to the extent they seek the imposition of sanctions against Defendant for its violations of the discovery rules.

IT IS SO ORDERED.

Footnotes

[1]

The witnesses’ testimony was taken at two hearings, one on August 23, 2013, and the other on September 5, 2013. The second hearing was conducted in part because Plaintiffs were unable to serve a subpoena on Sgt. Morales in advance of the first hearing. (See Dkt. No. 89). Plaintiffs suggest that Sgt. Morales was purposely evading service of the subpoena. (Aug. 23rd Hr’g at 2:11 p.m.). However, Sgt. Morales credibly testified that, at the time, she was out of the office attending a conference. (Sept. 5th Hr’g at 2:38-2:39 p.m.).

[2]

As will be discussed below, the jailhouse audio recording of David Campos’ conversation was made in July of 2011. However, Sgt. Morales claims that she was not made aware of its existence. (Sept. 5th Hr’g at 2:16 p.m.). Purportedly, the first she ever heard of the recording was at the motion hearing. (Id.).

[3]

Sgt. Morales claims to have been unaware of the suit’s filing. (Sept. 5th Hr’g at 2:10 p.m.).

[4]

For the reasons discussed below, any discrepancy between the testimony of Sgt. Morales and Commander Salinas is unimportant.

[5]

As will be discussed, Defendant also provided the audio recording at this time.

[6]

In light of the jail’s security concerns, this officer will not be referred to by name. (See Sept. 5th Hr’g at 2:52-2:53 p.m.).

[7]

Plaintiffs repeatedly refer in their pleadings to the surreptitious nature of this recording. In the Court’s experience, however, the transcripts of jailhouse recordings usually begin with an automated disclaimer, both in English and Spanish, that the call is being recorded. Here, although the transcript of the recorded conversation does not include the specific text of such a disclaimer, it does indicate that an “Operator Recording Disclaimer” prefaced the conversation (Dkt. No. 78 at 32).

[8]

Defendant appears to argue that the statements of these cellmates were not subject to disclosure because they do not support Plaintiffs’ case. However, this is an incorrect reading of Rule 26. As referenced above, information is subject to disclosure where “the disclosing party may use [that information] to support [the disclosing party’s] claims or defenses ....” Fed. R. Civ. P. 26(a)(1)(A)(i)(emphasis added); see also Fed. R. Civ. P. 26(a)(1)(A)(ii).

[9]

There is little reason to believe that the use of this recording “would be solely for impeachment.” SeeFed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added).

[10]

Also of note, courts have held that “whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands.” Sewell, 2011 WL 1232347, at *2 (collecting cases); see also Siddiq v. Saudi Arabian Airlines Corp., 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011); see also 8B Wright & Miller, Federal Practice and Procedure § 2173 (3d ed. 2013) (“A voluntary answer to an interrogatory is also a waiver of the objection.”). One reason for discouraging the practice of a simultaneous objection and answer is that such practice leaves the requesting party uncertain as to whether the discovery request has been fully answered. Consumer Elec. Ass’n v. Compras & Buys Magazine, Inc., 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008). Here, despite objecting to the request, Defendant simultaneously provided a response. (See Dkt. No. 77, Attach. 9 at 3). Defendant has since supplemented this response through the production of the recording itself.

[11]

As a threshold matter, Defendant argues that Plaintiffs’ sanctions motion should be denied as untimely. (Dkt. No. 84 at 2-3). According to Defendant, the sanctions motion was filed after the contested motions deadline of June 27, 2013. (Id. at 2). However, the timing of Plaintiffs’ motion can be deemed proper based on multiple theories. Contrary to Defendant’s representations, Plaintiffs moved for sanctions the day prior to the motions deadline, which the Court had previously extended to July 12, 2013. (See Dkt. Nos. 74, 77). This extension was granted based on Defendant’s failure to meet many of its discovery obligations even up until the original motions deadline of June 27th. (June 27th Hr’g; see also Dkt. No. 75). Regardless, Defendant’s untimely supplementation before the discovery deadline, coupled with their further supplementation after the motions deadline, would have provided good cause for the timing of Plaintiffs’ motion. See Fed. R. Civ. P. 16(b)(4) (permitting modification of a scheduling order “only for good cause and with the judge’s consent”). To be sure, any untimeliness argument is quite ironic given Defendant’s own patent inability to meet the deadlines set by this Court and the Federal Rules of Civil Procedure.

[12]

In this regard, Plaintiffs’ counsel argues that re-opening discovery would only be to Defendant’s benefit, presumably because this will delay the start of trial. However, the Court finds this argument to be disingenuous. For one, it contradicts counsel’s argument that the prosecution of the case has been prejudiced by Defendant’s untimely discovery. Regardless, it would behoove counsel to take the opportunity to further develop its case by deposing additional witnesses and attacking the credibility of those defense witnesses who have already been deposed. Whether this will spur an early settlement or dispense with any surprise at trial, those who stand to benefit the most, by far, are counsel’s own clients.

[13]

Given the unnecessary nature of Plaintiffs’ second supplement to the sanctions motion (Dkt. No. 95), the Court will not award fees related to this filing. First, the filing largely repeats Plaintiffs’ arguments made at the sanctions hearings. Furthermore, the main authority cited therein, National Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639 (1976), merely sets out basic sanctions law, and the facts are clearly distinguishable from the instant case. In National Hockey League, the Supreme Court upheld the sanction of dismissal upon the district court’s finding of bad faith. The district court made this finding based on the plaintiff’s failure to timely answer interrogatories despite numerous continuances to do so and in the face of specific warnings that sanctions would result based on the failure to provide the information. See id. at 640-641.

Campos v. Webb Cnty.

Citation: 2013 WL 12387158 (N.D. Tex. 2013)

Summary: The court found that the Defendant violated the discovery rules by failing to disclose ESI, including the address and written statement of Jose Velasquez, as well as the names, addresses, and statements of Gilberto Mata and Victor Quintero. The court also found that the Defendant was in possession of an audio recording of David Campos denying that he was abused, which should have been disclosed when the discovery responses were due. The court ordered the Defendant to produce any remaining discoverable material and noted that ESI is subject to disclosure if it can be used to support the disclosing party's claims or defenses.

Court: United States District Court, S.D. Texas, Laredo Division

Date decided: September 25, 2013

Judge: Hacker, Scoff J.

MAYLA V. CAMPOS, et al., Plaintiffs, v. WEBB COUNTY, TEXAS, Defendant CIVIL ACTION NO. 5:12-CV-7 United States District Court, S.D. Texas, Laredo Division Signed September 25, 2013 Counsel Douglas A. Allison, Law Offices of Douglas A. Allison, Corpus Christi, TX, for Mayla V. Campos, et al. Molly Higgins Santos, Webb County Attorney's Office, Laredo, TX, for Webb County, Texas. Hacker, Scoff J., United States Magistrate Judge MEMORANDUM & ORDER *1 This is a Section 1983 case stemming from the purported rape of Plaintiff David Campos by another inmate at the Webb County jail. (Dkt. No. 64). Before the Court is Plaintiffs’ “Second Motion for Sanctions” (Dkt. No. 77) against Defendant Webb County, who is alleged to have committed several violations of the Federal Rules of Civil Procedure as part of the discovery process. Plaintiffs seek sanctions in several forms, ranging from the imposition of fines to the striking of Defendant’s pleadings. (Id. at 14). Defendant generally opposes Plaintiffs’ motion. (Dkt. No. 84). However, during hearings held in relation to this motion, Defendant did acknowledge several of its shortcomings during discovery. These shortcomings were attributed to carelessness and honest mistakes, rather than bad faith as insisted upon by Plaintiffs. Having considered the matter, it is the Court’s opinion that Defendant should be subject to sanctions for its violations of the discovery rules. Nonetheless, the Court does not find that these violations were willful, and thus sanctions on the level of striking Defendant’s pleadings are unwarranted. Accordingly, Plaintiffs’ motion will be granted but only to the extent they seek some lesser form of sanctions against Defendant. Background The claimed discovery violations at issue concern what can be divided into two sets of discoverable material. The first includes a statement by and the address of the inmate who is alleged to have committed the rape, a Juan Velasquez, as well as statements by and the addresses of several other inmates who were possible witnesses to the incident. The second is a jailhouse audio recording of David Campos speaking to his mother and grandmother about his treatment by the other inmates, and according to Plaintiffs, the rape itself. Generally, Plaintiffs argue that Defendant violated the discovery rules by failing to turn over these materials as part of their initial disclosures, and by later failing to timely discover them in response to interrogatories and requests for production. The Court will first address its findings as to the discovery of the written statements, followed by its findings as to the audio recording. I. Written statements The following concerns the discovery of the inmates’ statements and addresses, and is based in part on the testimony of two witnesses, Commander Jose “Pepe” Salinas, who oversees the daily operations for the Webb County jail, and Sgt. Silvia Morales, an investigator with the Webb County Sheriff’s Office who conducted a criminal investigation of the rape allegations.[1] *2 The allegations of David Campos’ rape appear to have first surfaced sometime in July of 2011. Upon learning of these allegations, following protocol, Commander Salinas contacted a Commander J.J. Rendon, the officer in charge of the Sheriff’s Office investigators. (Aug. 23rd Hr’g at 3:04-3:05 p.m.). In August of 2011, Commander Rendon tasked Sgt. Morales with investigating the rape allegations. (Id. at 3:05 p.m.; Sept. 5th Hr’g at 2:08-2:010 p.m.). A preliminary step in Sgt. Morales’ investigation was to obtain Juan Velasquez’ address from the jail records, as well as the names and addresses of the former detainees who shared a cell with Velasquez and David Campos.[2] (SeeSept. Hr’g at 2:17-2:18 p.m.). Sgt. Morales then began the process of tracking down Velasquez and the others so she could interview them regarding the incident in question. (Id. at 2:18-2:19 p.m.). Complicating this process, many of the detainees had apparently provided inaccurate addresses and contact information. (Id. at 2:44-2:45 p.m.). Also, many appeared to have left the country, presumably to Mexico. (Id. at 2:19 p.m.). Ultimately, of the 30 or so detainees she attempted to find, Sgt. Morales was able to obtain statements from only Velasquez and four others. (Id. at 2:18-2:19 p.m.). The instant suit was filed in January of 2012.[3] (Dkt. No. 1). In February of 2012, Sgt. Morales interviewed Velasquez and took his written statement. (Dkt. No. 78 at 79-80). Velasquez essentially denied the rape allegations. (See id.). Later in February, Sgt. Morales obtained statements from a Gilberto Mata (Dkt. No. 88 at 1-2) and a Victor Quintero (id., Attach. 1 at 1-2). Both denied that there were ever any problems between David Campos and Velasquez. However, Quintero did note in his written statement that the two “[were] always horse playing[,] acting gayly [sic] and Campos was always acting gay.” (Id. at 1). Quintero also noted that “Campos [wore] his shirt like [a girl] bra[,] he was modeling for all the [tank].” (Id.). According to Sgt. Morales, soon after obtaining the statements, possibly that same February of 2012, she met with Commander Rendon and Commander Salinas and updated them as to her investigation. (Sept. 5th Hr’g at 2:22, 2:27 p.m.). She also claims to have provided Commander Salinas with copies of the above statements. (Id. at 2:25, 2:30-2:31, 2:35-2:36 p.m.). Commander Salinas, however, has a different recollection. According to Commander Salinas, he did not become aware of the statements until Sgt. Morales, based on procedure, turned them over to the Webb County Attorney’s Office.[4] (Aug. 23rd Hr’g at 3:00-3:01, 3:09, 3:12 p.m.). On April 30, 2012, in compliance with the Court’s scheduling order, the parties made their initial disclosures. (Dkt. Nos. 12, 13, 14). While Defendant’s disclosures listed several jail personnel and Jose Velasquez as witnesses having knowledge of the relevant facts pertaining to the lawsuit, no reference was made to Gilberto Mata and Victor Quintero. (See Dkt. No. 14). Furthermore, Defendant failed to provide the written statements of any of these cellmates. (Dkt. No. 77 at ¶ 14; Dkt. No. 87 at ¶¶ 3-4). Also in April of 2012, Plaintiffs served Defendant with written interrogatories and requests for production. (Dkt. No. 77 at ¶¶ 23, 25). In relevant part, the interrogatories asked Defendant to “[i]dentify every person with knowledge of relevant facts [by] name and aliases, date of birth, [and] last known address ....” (Id., Attach. 8 at 5). The production requests included a request for any “statements taken or received which pertain in any way to the arrest, incident, allegations, injury, treatment, or damages in question.” (Id., Attach. 9 at 5). Defendant responded to Plaintiffs’ discovery requests the following month, in May of 2012. (Id., Attachs. 8, 9). In answering the above interrogatory, Defendant listed Jose Velasquez but claimed that his address was unknown. (Id., Attach. 8 at 5-6). No mention was made of any other cellmates. Commander Salinas signed an affidavit supporting the veracity of the interrogatory responses. (Id. at 8). As to the production request, Defendant made no mention of the cellmates’ written statements obtained by Sgt. Morales. Of important note, although Ms. Molly Higgins Santos, Assistant Webb County Attorney, represents that she did not receive Velasquez’ statement until after Defendant’s discovery responses were due (Dkt. No. 84 at 3), her notes indicate that she did have a conversation about this case in May of 2012 with Sgt. Morales (see Aug. 23rd Hr’g at 3:31 p.m.). *3 Nonetheless, while discovery in this case progressed, Sgt. Morales continued with her investigation. In September of 2012, she obtained two more written statements, one from an Andrew Batey (Dkt. No. 88, Attach. 2) and the other from a Gerardo Chavez (id., Attach. 3). Both of these former detainees claimed that they could not recall any sexual assault occurring in the jail cell. According to Sgt. Morales, she met with Commander Salinas and provided him with copies of these statements at or near the time they were obtained. (Sept. 5th Hr’g at 2:30-2:32, 2:35 p.m.). Again, this is in conflict with Commander Salinas’ belief that Sgt. Morales would have turned over the statements to counsel. Nonetheless, Ms. Higgins Santos indicates that she had these two statements as of October of 2012. (Aug. 23rd Hr’g at 3:31 p.m.). Discovery came to a close on June 10, 2013. (Dkt. No. 62). Three days before this deadline, Defendant supplemented its disclosures and provided Plaintiffs with Jose Velasquez’ address and his written statement.[5] (Dkt. No. 77 at 6; Dkt. No. 78 at 1-2, 79-80). However, the statements of the four other cellmates would not be produced until later. On July 11, 2013, Plaintiffs filed the instant motion for sanctions. (Dkt. No. 77). Thereby, they requested a hearing, which the Court scheduled for August. (Dkt. Nos. 85, 86). In anticipation of the hearing, on August 14, 2013, Plaintiffs attempted to subpoena Sgt. Morales as a witness. (Dkt. No. 89). The following day, Defendant supplemented its disclosures again, providing the written statements of Mata, Quintero, Batey, and Chavez. (Dkt. No. 88). II. Audio recording The following concerns the discovery of the jailhouse audio recording, and is based on the testimony of Commander Salinas and a correctional officer who handles intelligence at the Webb County jail.[6] According to the jail’s visitation logs, in July of 2011, David Campos received a visit by his mother and grandmother. (See Aug. 23rd Hr’g at 2:44-2:46 p.m.). Their conversation took place over a prison visitation phone system. (Id. at 2:37-2:38 p.m.). As per jail policy, the conversation was recorded.[7] (Id. at 2:36-2:37 p.m.). The recording was then electronically stored on a computer server, like all other visitation recordings, for its potential future use. (Id. at 2:39, 2:42 p.m.). As already discussed, the instant suit was filed the following January, and initial disclosures were exchanged in April of 2012. As part of its initial disclosures, Defendant provided a copy of the visitation log. (See Dkt. No. 14 at 3). However, no mention was made in Defendant’s initial disclosures of the recorded conversation. Similarly, no mention was made of the recording in May of 2012, when Defendant filed its response to Plaintiffs’ production request for, amongst other things, “audio recordings ... pertain[ing] in any way to the subject matter of this suit.” (Dkt. No. 77, Attach. 9 at 3, 5). According to the jail’s intelligence officer, in August or September of 2012, the jail switched to a web-based platform for the storage of visitation audio recordings. (Sept. 5th Hr’g at 3:02-3:05, 3:09 p.m.). In seeming contradiction, Commander Salinas referred to server-related technical difficulties occurring at the time he verified Defendant’s discovery responses in May of 2012. (Aug. 23rd Hr’g at 2:39-2:40, 2:50-2:51, 2:54, 3:20 p.m.). Nonetheless, the recording at issue remained stored on an old server, which was set aside and kept on-site at the jail. (Sept. 5th Hr’g at 3:05 p.m.). *4 In early May of 2013, the jail’s intelligence officer was asked by Commander Salinas to retrieve the recording at issue from the old server (Sept. 5th Hr’g at 2:59, 3:01, 3:08-3:09 p.m.), so the officer contacted Securus, the communications company administering the jail’s servers (id. at 2:54-2:55 p.m.). Prior to that, Securus had made several attempts to access data from the old server, but this particular server’s data-storage platform complicated the matter. (Id. at 3:02, 3:05-3:06 p.m.). It was not until late May of 2013 that Securus would resolve the data-collection issue. (Id. at 3:01, 3:05-3:06 p.m.). Around May 27, 2013, Ms. Higgins Santos was in a meeting with Commander Salinas on an unrelated matter. (Dkt. No. 84 at 4). According to Ms. Higgins Santos, at this meeting, Commander Salinas mentioned the audio recording to her for the first time, despite his prior participation in responding to Plaintiffs’ initial production request. (Id.). The audio recording was delivered to the Webb County Attorney’s Office on May 30, 2013. (Id.; Aug. 23rd Hr’g at 2:57-2:58 p.m.). Ms. Higgins Santos then had a transcription of the recording translated from Spanish to English. (Dkt. No. 84 at 4; Aug. 23rd Hr’g at 2:06-2:07 p.m.). Defendant produced the recording and transcript on June 7, 2013, three days before the close of discovery. (Dkt. No. 77 at ¶ 15; Dkt. No. 78 at 11-52). Discussion Against this background, the Court must now discuss whether Defendant did indeed violate the Federal Rules of Civil Procedure during the discovery process. If so, the Court must determine what form of sanctions is appropriate. These issues will be discussed in turn. I. Discovery violations A. Legal Standard The discovery rules at play are rather straightforward. Rule 26 of the Federal Rules of Civil Procedure governs initial disclosures. Generally, subject to initial disclosure are “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses....” Fed. R. Civ. P. 26(a)(1)(A)(i). Also subject to disclosure is “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party ... may use to support its claims or defenses ....” Fed. R. Civ. P. 26(a)(1)(A)(ii). Interrogatories and requests for production are governed by Rules 33 and 34, respectively. The time to respond to interrogatories and production requests is generally 30 days. See Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). However, during the discovery process, disclosures and discovery responses are subject to supplementation. Supplementation must occur “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....” Fed. R. Civ. P. 26(e)(1)(A). B. Analysis Here, it is the Court’s conclusion that Defendant violated the discovery rules. 1. Written statements Rule 26 called for the initial disclosure of the address and written statement of Jose Velasquez, as well as the names, addresses, and statements of Gilberto Mata and Victor Quintero. Defendant’s position is that David Campos was not raped at the jail, and these three cellmates—even Quintero—essentially deny that the rape occurred.[8]Indeed, Velasquez is listed as a witness in support of Defendant’s position. A separate issue is whether Defendant was in possession of the above information when disclosures were due. In this regard, the Court notes that Sgt. Morales had managed to track down Velasquez, Gilberto, and Mata two months prior. *5 Regardless of the disclosure issue, it is uncontested that the cellmates’ statements were responsive to Plaintiffs’ discovery requests for the identity of those with knowledge of the relevant facts and for any statements pertaining to the allegations at issue. With respect to Defendant’s knowledge and possession of these statements, there is some confusion regarding the identity of the person who received the statements from Sgt. Morales. However, it makes little difference whether the statements were received by Commander Salinas or directly by Ms. Higgins Santos. When the discovery responses were due in May of 2012, it appears that Commander Salinas and counsel were at least aware of Sgt. Morales’ investigation, which should have spurred a specific inquiry into what the investigation had uncovered. Furthermore, they were both responsible for the discovery responses—Commander Salinas as the person who certified their veracity, and Ms. Higgins Santos as an officer of the Court. The timely supplementation of the above information presents another concern. The fact that any discovery related to Velasquez, Mata, and Quintero was incomplete and incorrect should have been apparent at the latest since May of 2012, when Ms. Higgins Santos concedes she spoke to Sgt. Morales. However, Defendant did not supplement its discovery with Velasquez’ statement for more than a year—only three days before the end of discovery. Furthermore, Defendant did not supplement with the statements of Mata and Quintero for more than two months after the close of discovery. The statements of Andrew Batey and Gerardo Chavez would also be produced after the discovery deadline, despite the fact that Ms. Higgins Santos had learned of their existence sometime in October of 2012. 2. Audio recording Rule 26 also called for the initial disclosure of the audio recording. In the recording, David Campos denies that he was actually abused (Dkt. 78 at 38-39), which would support Defendant’s case.[9] Defendant was also aware of and in possession of this recording when disclosures were due. Commander Salinas may claim that the recording could not be retrieved from the jail’s server at this time because of the switch in platform. On this point, however, the Court finds the jail’s intelligence officer, as the recording’s custodian, to be the more reliable witness. While disclosures were due in April of 2012, the intelligence officer testified that any server-related issues did not occur until several months later. Even assuming that the recording could not have been retrieved in April of 2012, the text of Rule 26required at the very least a description of the recording’s location. To the extent it was not subject to initial disclosure, the recording should have been produced in May of 2012 as a response to Plaintiffs’ request for audio recordings pertaining to the suit. Defendant argues that no discovery violation occurred because it objected to the request on grounds of over breadth. (Dkt. No. 84 at 4). However, this argument is without merit. According to Rule 34, relating to requests for production, a responding party must state in writing what documents will be produced, and any objection to part of a request must specify that part but permit inspection of the rest. See Fed. R. Civ. P. 34(b)(2)(B), (C); see also Sewell v. D’Alessandro & Woodyard, Inc., 2011 WL 1232347, at *1 (M.D. Fla. March 30, 2011). Indeed, Defendant does not deny that the recording is responsive to Plaintiffs’ production request.[10] *6 With regards to supplementation, Defendant notes that it produced the recording before the discovery deadline and only one week from the date it was received by the Webb County Attorney’s Office. However, this does not mean that Defendant’s production of the recording was necessarily timely. As discussed, Commander Salinas, who participated in preparation of Defendant’s responses to the production requests, was well aware of the recording’s existence before May of 2012 when production responses were due. Again, any claims that the recording was not accessible at this time are simply not as reliable as the intelligence officer’s testimony supporting otherwise. II. Sanctions Having determined that Defendant violated the discovery rules, the Court must now determine the appropriate level of sanctions.[11] A. Legal Standard Sanctions for discovery violations are governed by Rule 37. The court, on motion and after giving an opportunity to be heard, may impose a range of sanctions if a party fails to disclose information or to supplement. Fed. R. Civ. P. 37(c)(1). For instance, a party may be ordered to pay the reasonable expenses, including attorney’s fees, caused by the failure. Fed. R. Civ. P. 37(c)(1)(A). A party’s pleadings are even subject to being stricken. Fed. R. Civ. P. 37(b)(2)(A)(iii); Fed. R. Civ. P. 37(c)(1)(C). Nonetheless, extreme sanctions such as those involving the striking of pleadings are only appropriate where at least two criteria are met. First, the penalized party’s discovery violation must be willful. Plasticsource Workers Committee v. Coburn, 283 F. App’x 181, 184 (5th Cir. 2008) (citing Smith v. Smith, 145 F.3d 335, 344 (5th Cir. 1988)). Second, the drastic measure may only be employed where a lesser sanction would not achieve the desired effect. Plasticsource, 283 F. App’x at 184 (citing Smith, 145 F.3d at 344). Courts may also consider whether the opposing party was prejudiced by the discovery violation, and whether the violation can be blamed on the client. Plasticsource, 283 F. App’x at 184 (citing Batson v. Neal Spelce Assocs., 765 F.2d 511, 514 (5th Cir. 1985)). B. Analysis In support of their sanctions motion to strike Defendant’s pleadings, Plaintiffs point to several circumstances as evidence of willfulness. Despite having located Velasquez, Defendant initially listed his address as unknown, and his written statement was not produced until the discovery deadline. The statements of the other four cellmates were only produced when Sgt. Morales, the person who took those statements, was subpoenaed to appear for a sanctions hearing. As for the audio recording of David Campos, this was produced at the close of discovery, even though it was accessible to Defendant when discovery began. *7 Plaintiffs also argue that the untimely discovery prejudiced their deposition strategy. For one, they would have attempted to locate and conduct the deposition of Victor Quintero, who corroborated a claim by David Campos that he was made to dress like a woman and dance for the other inmates. Plaintiffs also assert that, with this and the rest of the discovery in hand, they would have been able to conduct more effective depositions of the jail officials, all of whom claimed that rape does not occur at the jail. According to Ms. Higgins Santos, however, any discovery violations were not made in bad faith and were instead pure oversights caused by her heavy workload. (Sept. 5th Hr’g at 4:03-4:04 p.m.). Regarding why the cellmate statements were produced separately, Ms. Higgins Santos explains that in the midst of supplementing discovery she most likely became distracted by the voluminous discovery in another case. (Id. at 3:43-:3:44, 4:03-4:04 p.m.). Upon conducting an evaluation of Defendant’s discovery responses, she realized that the four cellmates’ statements had not been produced. (Id.). To the extent that these four statements were produced after Sgt. Morales was subpoenaed, this was supposedly mere coincidence. (Id. at 3:43-3:44 p.m.). Here, while the record may demonstrate that Defendant has taken a neglectful and lackadaisical approach towards the discovery process, this falls short of the willful discovery violations necessary to impose sanctions in the most extreme of forms. Indeed, Plaintiffs’ arguments in support of willfulness are not entirely logical. Willfulness would seem more likely had the Sheriff’s Office waited until after the discovery deadline to inform Ms. Higgins Santos about the discovery at issue, especially the written statement of Quintero and the audio recording—the only two items of untimely discovery that can arguably be said to support David Campos’ claims of rape. However, it is uncontroverted that the Sheriff’s Office, in one form or another, discussed the discovery at issue with Ms. Higgins Santos, who disclosed at least Velasquez’ statement and the audio recording before the discovery deadline. Although the production of Quintero’s statement came after the close of discovery, this hardly establishes willfulness given that the statement was produced, not by itself, but with three other statements that support Defendant’s case. Ms. Higgins Santos’ claim regarding the coincidental release of the four cellmate statements is further corroborated by Sgt. Morales’ testimony that she did not contact the Webb County Attorney’s Office about the attempts to subpoena her. (Sept. 5th Hr’g at 2:37-2:39 p.m.). As for the late production of the audio recording, this appears to be the result of nothing more than Commander Salinas’ lack of appreciation—or lack of training—regarding the strictures of the discovery process. In terms of prejudice, it is likely that Plaintiffs’ deposition strategy was affected by Defendant’s discovery violations. Nonetheless, given that this case is still in the pretrial stage, any prejudice can be easily cured by re-opening discovery to Plaintiffs and holding Defendant responsible for any reasonable expenses, including attorney’s fees, caused by its violations.[12] The Court is confident that such is sufficient to secure Defendant’s future compliance with its discovery obligations. *8 That said, the Court notes that as of the date of the final hearing held in this matter, Defendant had yet to produce discoverable material, specifically, the entirety of Sgt. Morales’ investigative file. (Id. at 4:02-4:03 p.m.). Moreover, although Defendant had produced the names of David Campos’ cellmates (Dkt. No. 96 at 5-8), it had failed to produce the cellmates’ addresses, presumably because their accuracy could not be confirmed. To the extent it has not already done so, Defendant must turn over the investigative file, the inmates’ addresses on file (regardless of their accuracy), and any other discoverable material. Now that Defendant has been so warned and sanctioned, any subsequent discovery violations will be viewed with suspicion, or as the likely result of a willful attempt to conceal rather than accidental oversight. Conclusion Accordingly, the Court enters this amended scheduling order, which shall control disposition of this action pending further order. The following actions shall be completed by the dates indicated. Furthermore, the following is hereby ORDERED: (1) In accordance with the above scheduling order, Plaintiffs will be allowed to continue to conduct discovery in this matter, including but not limited to the taking of depositions. (2) Should Plaintiffs re-depose any Webb County jail officials or personnel, the scope of such depositions must be limited to the contents of the untimely discovery at issue and any evidence developed therefrom. Defendant will be responsible for paying the reasonable travel expenses of Plaintiffs’ counsel associated with the taking of these depositions. Counsel for both parties must arrive at an agreeable deposition schedule tailored to minimize these travel expenses. (3) Defendant will be responsible for paying Plaintiffs’ reasonable attorney’s fees associated with the filing of the “Second Motion for Sanctions” (Dkt. No. 77), the first supplement thereto (Dkt. No. 87), and the sanctions hearings held on August 23, 2013 and September 5, 2013.[13] (4) Defendant will not be held responsible for any additional expenses and fees except upon a showing by Plaintiff that such expenses and fees would not have been incurred but for the underlying discovery violations. (5) Should the parties be unable to agree on an amount of attorney’s fees, Plaintiffs should file with the Court documentary evidence in support of their requested fees consistent with the requirements discussed in Tollett v. City of Kemah, 285 F.3d 357 (5th Cir. 2002). As such, Plaintiffs’ Motion (Dkt. No. 77) is hereby GRANTED to the extent they seek the imposition of sanctions against Defendant for its violations of the discovery rules. IT IS SO ORDERED. Footnotes [1] The witnesses’ testimony was taken at two hearings, one on August 23, 2013, and the other on September 5, 2013. The second hearing was conducted in part because Plaintiffs were unable to serve a subpoena on Sgt. Morales in advance of the first hearing. (See Dkt. No. 89). Plaintiffs suggest that Sgt. Morales was purposely evading service of the subpoena. (Aug. 23rd Hr’g at 2:11 p.m.). However, Sgt. Morales credibly testified that, at the time, she was out of the office attending a conference. (Sept. 5th Hr’g at 2:38-2:39 p.m.). [2] As will be discussed below, the jailhouse audio recording of David Campos’ conversation was made in July of 2011. However, Sgt. Morales claims that she was not made aware of its existence. (Sept. 5th Hr’g at 2:16 p.m.). Purportedly, the first she ever heard of the recording was at the motion hearing. (Id.). [3] Sgt. Morales claims to have been unaware of the suit’s filing. (Sept. 5th Hr’g at 2:10 p.m.). [4] For the reasons discussed below, any discrepancy between the testimony of Sgt. Morales and Commander Salinas is unimportant. [5] As will be discussed, Defendant also provided the audio recording at this time. [6] In light of the jail’s security concerns, this officer will not be referred to by name. (See Sept. 5th Hr’g at 2:52-2:53 p.m.). [7] Plaintiffs repeatedly refer in their pleadings to the surreptitious nature of this recording. In the Court’s experience, however, the transcripts of jailhouse recordings usually begin with an automated disclaimer, both in English and Spanish, that the call is being recorded. Here, although the transcript of the recorded conversation does not include the specific text of such a disclaimer, it does indicate that an “Operator Recording Disclaimer” prefaced the conversation (Dkt. No. 78 at 32). [8] Defendant appears to argue that the statements of these cellmates were not subject to disclosure because they do not support Plaintiffs’ case. However, this is an incorrect reading of Rule 26. As referenced above, information is subject to disclosure where “the disclosing party may use [that information] to support [the disclosing party’s] claims or defenses ....” Fed. R. Civ. P. 26(a)(1)(A)(i)(emphasis added); see also Fed. R. Civ. P. 26(a)(1)(A)(ii). [9] There is little reason to believe that the use of this recording “would be solely for impeachment.” SeeFed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added). [10] Also of note, courts have held that “whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands.” Sewell, 2011 WL 1232347, at *2 (collecting cases); see also Siddiq v. Saudi Arabian Airlines Corp., 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011); see also 8B Wright & Miller, Federal Practice and Procedure § 2173 (3d ed. 2013) (“A voluntary answer to an interrogatory is also a waiver of the objection.”). One reason for discouraging the practice of a simultaneous objection and answer is that such practice leaves the requesting party uncertain as to whether the discovery request has been fully answered. Consumer Elec. Ass’n v. Compras & Buys Magazine, Inc., 2008 WL 4327253, at *3 (S.D. Fla. Sept. 18, 2008). Here, despite objecting to the request, Defendant simultaneously provided a response. (See Dkt. No. 77, Attach. 9 at 3). Defendant has since supplemented this response through the production of the recording itself. [11] As a threshold matter, Defendant argues that Plaintiffs’ sanctions motion should be denied as untimely. (Dkt. No. 84 at 2-3). According to Defendant, the sanctions motion was filed after the contested motions deadline of June 27, 2013. (Id. at 2). However, the timing of Plaintiffs’ motion can be deemed proper based on multiple theories. Contrary to Defendant’s representations, Plaintiffs moved for sanctions the day prior to the motions deadline, which the Court had previously extended to July 12, 2013. (See Dkt. Nos. 74, 77). This extension was granted based on Defendant’s failure to meet many of its discovery obligations even up until the original motions deadline of June 27th. (June 27th Hr’g; see also Dkt. No. 75). Regardless, Defendant’s untimely supplementation before the discovery deadline, coupled with their further supplementation after the motions deadline, would have provided good cause for the timing of Plaintiffs’ motion. See Fed. R. Civ. P. 16(b)(4) (permitting modification of a scheduling order “only for good cause and with the judge’s consent”). To be sure, any untimeliness argument is quite ironic given Defendant’s own patent inability to meet the deadlines set by this Court and the Federal Rules of Civil Procedure. [12] In this regard, Plaintiffs’ counsel argues that re-opening discovery would only be to Defendant’s benefit, presumably because this will delay the start of trial. However, the Court finds this argument to be disingenuous. For one, it contradicts counsel’s argument that the prosecution of the case has been prejudiced by Defendant’s untimely discovery. Regardless, it would behoove counsel to take the opportunity to further develop its case by deposing additional witnesses and attacking the credibility of those defense witnesses who have already been deposed. Whether this will spur an early settlement or dispense with any surprise at trial, those who stand to benefit the most, by far, are counsel’s own clients. [13] Given the unnecessary nature of Plaintiffs’ second supplement to the sanctions motion (Dkt. No. 95), the Court will not award fees related to this filing. First, the filing largely repeats Plaintiffs’ arguments made at the sanctions hearings. Furthermore, the main authority cited therein, National Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639 (1976), merely sets out basic sanctions law, and the facts are clearly distinguishable from the instant case. In National Hockey League, the Supreme Court upheld the sanction of dismissal upon the district court’s finding of bad faith. The district court made this finding based on the plaintiff’s failure to timely answer interrogatories despite numerous continuances to do so and in the face of specific warnings that sanctions would result based on the failure to provide the information. See id. at 640-641.