Bartlett v. S.C. Dep't of Corr.
Bartlett v. S.C. Dep't of Corr.
2020 WL 4590003 (D.S.C. 2020)
April 7, 2020
Baker, Mary G., United States Magistrate Judge
Summary
The court found that Defendant SCDC failed to preserve ESI related to the Roth Report and ordered them to pay the reasonable expenses associated with the motions to compel and preparing for the hearings related to those motions, including attorneys' fees. The court also recommended that SCDC cannot contest the contents of the Roth Report at trial due to the loss of this information and ordered Plaintiffs to submit evidence regarding the time and money they spent specific to the cases.
Additional Decisions
Brandon Bartlett, Plaintiff,
v.
South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of Lieber Correctional Institution; Correctional Officer Kelly, individually and/or in his official capacity as an employee of Lieber Correctional Institution; Correctional Officer McKie, individually and/or in his official capacity as an employee of Lieber Correctional Institution, Defendants
Garcia Wilson, Plaintiff,
v.
South Carolina Department of Corrections, Warden Richard Cothran, Warden Willie Eagleton, Associate Warden Sellers, Officer McFadden, Officer Smith, Officer Davis, Officer Sgt. Parker, Officer Gillespie, Officer Ocean, and Major Charles West) Defendants
Garcia Wilson, Plaintiff,
v.
Warden Willie Eagleton, individually and/or in his official capacity as warden of Evans Correctional Institution; Warden Donnie Stonebreaker, individually and/or in his official capacity as warden of Evans Correctional Institution; Correctional Officer Corey Lucas, individually and/or in his/her official capacity as an employee of SCDC; Correctional Officer Sergeant Cotton, individually and/or in his/her official capacity as an employee of SCDC; Correctional Officer Sergeant Sims, official capacity as an employee of SCDC; Correctional Officer Sergeant Williamson, individually and/or in his/her official capacity as an employee of SCDC; Defendants
Korell Battle, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Darnell Brown, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Ronnie Drake, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Lance Lyles, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
John Mack, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Richard Kough, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Brian Littlejohn, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Craig Priester, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Sterling Harley, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Therl Taylor, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Roy Sutherland, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Joseph Wilson, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
v.
South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of Lieber Correctional Institution; Correctional Officer Kelly, individually and/or in his official capacity as an employee of Lieber Correctional Institution; Correctional Officer McKie, individually and/or in his official capacity as an employee of Lieber Correctional Institution, Defendants
Garcia Wilson, Plaintiff,
v.
South Carolina Department of Corrections, Warden Richard Cothran, Warden Willie Eagleton, Associate Warden Sellers, Officer McFadden, Officer Smith, Officer Davis, Officer Sgt. Parker, Officer Gillespie, Officer Ocean, and Major Charles West) Defendants
Garcia Wilson, Plaintiff,
v.
Warden Willie Eagleton, individually and/or in his official capacity as warden of Evans Correctional Institution; Warden Donnie Stonebreaker, individually and/or in his official capacity as warden of Evans Correctional Institution; Correctional Officer Corey Lucas, individually and/or in his/her official capacity as an employee of SCDC; Correctional Officer Sergeant Cotton, individually and/or in his/her official capacity as an employee of SCDC; Correctional Officer Sergeant Sims, official capacity as an employee of SCDC; Correctional Officer Sergeant Williamson, individually and/or in his/her official capacity as an employee of SCDC; Defendants
Korell Battle, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Darnell Brown, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Ronnie Drake, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Lance Lyles, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
John Mack, Plaintiff,
v.
South Carolina Department of Corrections; Warden Cecilia Reynolds, individually and in her official capacity as warden of Lee Correctional Institution; Warden Aaron Joyner, individually and in his official capacity as warden of Lee Correctional Institution, Defendants
Richard Kough, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Brian Littlejohn, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Craig Priester, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Sterling Harley, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Therl Taylor, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Roy Sutherland, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Joseph Wilson, Plaintiff,
v.
South Carolina Department of Corrections; Warden Levern Cohen, individually and/or in his official capacity as Warden of Ridgeland Correctional Institution; Defendants
Civil Action No. 2:17-03031-RMG-MGB | Case No. 2:17-cv-03032-RMG-MGB | Civil Action No. 1:18-00050-RMG-MGB | Case No. 2:18-cv-00719-TMC-MGB, Case No. 2:19-cv-00572-TMC-MGB, Case No. 2:19-cv-00574-TMC-MGB, Case No. 2:9-cv-00575-TMC-MGB, Case No. 2:19-cv-00576-TMC-MGB | Civil Action No. 0:17-2938-JFA-MGB, Civil Action No. 0:19-2101-JFA-MGB, Civil Action No. 0:19-2103-JFA-MGB, Civil Action No. 0:19-2104-JFA-MGB, Civil Action No. 0:19-2105-JFA-MGB, Civil Action No. 0:19-2106-JFA-MGB, Civil Action No. 0:19-2107-JFA-MGB
United States District Court, D. South Carolina
Signed April 07, 2020
Counsel
Gabrielle Anna Sulpizio, James Edward Bell, III, Victoria S. H. Knight, Bell Legal Group, Georgetown, SC, Gregory Michael Galvin, Galvin Law Group Inc, Bluffton, SC, for Plaintiff.Daniel C. Plyler, Smith Robinson LLC, Columbia, SC, David Cornwell Holler, Smith Robinson Holler Dubose and Morgan LLC, Sumter, SC, for Defendants.
Baker, Mary G., United States Magistrate Judge
ORDER & REPORT AND RECOMMENDATION
*1 These actions have been filed by Plaintiffs pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), S.C. Code Ann. §§ 15-78-10 et seq. They are a few of the many actions currently before the undersigned that have been filed by Plaintiffs’ counsel concerning inmate violence and understaffing at the South Carolina Department of Corrections (“SCDC”). See, e.g. Dexter Crawford v. SCDC, et al., 6:18-cv-2407; Craig Ellerbe v. SCDC, et al., 6:19-cv-96; Jamarcus Murray v. SCDC, et al., 6:19-cv-100. Currently before the Court is Plaintiffs’ Amended Motion for Sanctions Against Defendant SCDC (“Sanctions Motion”), which Plaintiffs have filed in each of the above cases. (Dkt. No. 129.) Because of the way Plaintiffs have drafted their Sanctions Motion,[1] the undersigned has found it necessary to address all of the cases in one Order and Report and Recommendation, rather than issuing a separate ruling and recommendation in each case. For the reasons set forth below, the undersigned grants in part and denies in part Plaintiffs’ Sanctions Motion, as detailed in the conclusion section of the Order and Report and Recommendation.
BACKGROUND
On September 24, 2019, Plaintiffs filed a Motion for Oral Arguments, Expedited Motion for Production of Records, and Motion for Sanctions in numerous cases. See, e.g., Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB Dkt. No. 114. Relevant here, the undersigned issued an Order holding in abeyance Plaintiffs’ request for sanctions, “to be decided after a hearing is held on the Motion.” See, e.g., Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB Dkt. No. 117. The Court subsequently entered a Text Order on November 15, 2019, stating
Per the Court's September 25, 2019 Text Order, the Court has held in abeyance Plaintiffs’ request for sanctions. More specifically, in a prior brief, Plaintiffs asked for sanctions and all costs and fees based on allegations that Defendants intentionally disrupted the discovery process. To the extent Plaintiffs still assert that sanctions are appropriate, they must file a separate Motion for Sanctions by December 2, 2019, with documentation of the fees and costs at issue. Defendants must file a response brief by December 11, 2019. No extensions will be granted.
Thereafter, Plaintiff filed the instant Sanctions Motion on December 2, 2019 in the following cases: (1) Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB (“Bartlett”); (2) Wilson v. SCDC et al., 1:17-cv-03032-RMG-MGB (“Wilson (17-3032)”); (3) Wilson v. Eagleton et al 1:18-cv-00050-RMG-MGB (“Wilson (18-50)”); (4) Battle et al. v. SCDC et al., 2:18-cv-00719-TMC-MGB (“Battle”) and the cases severed from Battle: Darnell Brown v. SCDC et al 2:19-cv-00572-TMC-MGB (“Brown”), Drake v. SCDC et al 2:19-cv-00574-TMC-MGB (“Drake”), Lyles v. SCDC et al 2:19-cv-00575-TMC-MGB, Mack v. SCDC et al 2:19-cv-00576-TMC-MGB (collectively, “the Battle cases”); and (5) Kough et al. v. SCDC et al., 0:17-cv-02938-JFA (“Kough”) and the cases severed from Kough: Littlejohn v. SCDC, 0:19-cv-02101-JFA-MGB, Priester v. SCDC, 0:19-cv-02103-JFA-MGB, Harley v. SCDC, 0:19-cv-02104-JFA-MGB, Taylor v. SCDC, 0:19-cv-02105-JFA-MGB, Sutherland v. SCDC, 0:19-cv-02106-JFA-MGB, Wilson v. SCDC, 0:19-cv-02107-JFA-MGB (collectively, “the Kough cases”).
*2 Defendants filed a response to the Sanctions Motion in each of the above cases on December 11, 2019 (Dkt. No. 130), to which Plaintiffs filed a reply on December 18, 2019 (Dkt. No. 131). The Sanctions Motion has been fully briefed and is ripe for the Court's review.
STANDARDS
Federal Rule of Civil Procedure 37 provides sanctions for conduct abusive of the discovery process. Under Rule 37(c),
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Rule 26(a) deals with required initial disclosures, and Rule 26(e) requires supplemental disclosure to any initial discovery or previous response to a discovery request “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.” Fed. R. Civ. P. 26(e)(1). “The determination of whether a Rule 26(a) or (e) violation is justified or harmless is entrusted to the broad discretion of the district court.” Reed v. Washington Area Metro. Transit Auth., No. 1:14-CV-65, 2014 WL 2967920, at *2 (E.D. Va. July 1, 2014).
The following sanctions are available to the court under Rule 37(b)(2)(A)(i)-(vi): (1) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (2) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (3) striking pleadings in whole or in part; (4) staying further proceedings until the order is obeyed; (5) dismissing the action or proceeding in whole or in part; or (6) rendering a default judgment against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). Additionally, if a party “impedes, delays, or frustrates the fair examination” of a deponent during a deposition, the court “may impose an appropriate sanction,” including the reasonable expenses and attorney's fees incurred. Fed. R. Civ. P. 30(d)(2).
When considering whether to impose sanctions for a party's failure to comply with a court order under Rule 37(b), courts in this circuit are to consider four factors: “(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective.”[2] S. States Rack and Fixture, Inc. v. Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). “A district court must consider all of these factors; however, no one factor is dispositive.” Cox v. Deal, No. 2:09–cv–2715, 2011 WL 3418397, at *5 (D.S.C. Aug.3, 2011).
*3 Relatedly, Rule 37(a)(5)(A) provides,
If a motion for an order compelling disclosure or discovery is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.
Rule 37(e) provides,
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or[,] (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or[,] (C) dismiss the action or enter a default judgment.
Under Rule 37(e), before a court may impose sanctions, four requirements must be met. Fed. R. Civ. P. 37(e). First, some electronically stored information“(ESI”) must have been “lost.” Id. Second, that information (or evidence) must be of the sort that “should have been preserved in the anticipation or conduct of litigation.” Id. Third, the evidence must have been lost “because a party failed to take reasonable steps to preserve it.” Id. Finally, the court must find that the evidence “cannot be restored or replaced through additional discovery.” Id.
Local Civil Rule 7.09 provides, “Where the court finds that a motion is frivolous or filed for delay, sanctions may be imposed against the party or counsel filing such motion.” Local Civil Rule 7.09 D.S.C. In addition, there is the Court's inherent power to sanction. “Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates. These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotes and cites omitted). However, “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion,” with the primary aspect of their use being the “ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44–45.
DISCUSSION
*4 In their Motion, Plaintiffs’ allegations of sanctionable conduct focus on two areas of discovery: (1) Defendant SCDC's failure to supplement certain responses to Plaintiff's discovery requests in Bartlett, the Battle cases, and the Kough cases; and (2) Defendant SCDC's conduct as to various discovery issues relating to the Roth Report in all of the above cases.[3] The undersigned sets forth these allegations, below.
A. Supplemental Responses
In Bartlett and the Battle cases, the Court issued respective Orders on June 6, 2019, addressing, inter alia, “a few outstanding discovery issues” regarding Plaintiff's discovery requests. (Bartlett Dkt. No. 65 at 3; Battle Dkt. No. 100 at 3.) Relevant here, the Court ordered Defendants to produce the requested videos/photographs, minute meetings, and post charts to Plaintiff by June 14, 2019. (Bartlett Dkt. No. 65 at 3–6; Battle Dkt. No. 100 at 3–8.) The Court expressly ordered that if Defendants assert there are no items responsive to these particular requests, other than what has been produced, Defendants must aver to this in an affidavit. The Court further ordered, “In any such affidavit, Defendants must specify why these items cannot be produced (ie, they could not be located, etc.).” (Bartlett Dkt. No. 65 at 3–6; Battle Dkt. No. 100 at 3–8.)
In their Sanctions Motion, Plaintiffs allege that “SCDC produced unsigned and incomplete affidavits,” and despite further requests from Plaintiffs, “Defendants have still failed to fully comply with this Courts’ Orders.” (Dkt. No. 129 at 12.) Plaintiffs have attached as an exhibit to their Motion a deficiency letter they sent to defense counsel on September 23, 2019, regarding the remaining outstanding discovery in these cases. The letter states that in the Battle cases, Plaintiffs still need either the requested videos/photographs or a sworn affidavit, and in Bartlett, Plaintiffs still need “all the Post charts/sheets for 2015-2017.” (Dkt. No. 129-1.)
Here, Defendants respond that they “are unaware of any outstanding incomplete and unsigned affidavits, and Plaintiffs have not demonstrated to what affidavits they are referring.” (Dkt. No. 130 at 5.) Defendants further state that “Defendants’ counsel inadvertently overlooked” the September 23, 2019 deficiency letter, and they now see that no affidavit has been produced “concerning surveillance video or videos of inmate's injuries.” (Id.) Appearing to refer to the Battle cases, Defendants state that “Defendant SCDC will represent that no such videos are available from Lieber Correctional Institution.[4] for the above captioned plaintiffs, and affidavits averring such shall be produced, to include why no such videos exist.” (Id.)
*5 Defendants assert that with respect to Drake and Brown, two cases severed from Battle, Defendant SCDC “recently discovered that video may exist regarding the death of a non-party, Christian Ray.” (Brown Dkt. No. 131 at 4.) Defendants assert that the “contents of that video are currently unknown, but as the events in that incident occurred in the same dorm on the same date as the incidents alleged in Ronnie Drake and Darnell Brown's complaints, there is a possibility that some relevant footage may be contained therein.” (Id.) Defendants assert they have withheld this video “due to its connection with an active and ongoing criminal prosecution for the Murder of Christian Ray. Defendant SCDC will either receive permission from the Lee County Solicitor's office to produce a copy of the video, or, in the alternative, produce an affidavit stating the above.” (Id.)
Defendants further state that as to Bartlett, Defendants have provided the post charts for 2016-2017 and “will either locate the post chart for 2015 or produce an affidavit in compliance with the court's order.” (Dkt. No. 130 at 5.) Defendants assert that “Plaintiffs are in possession of the post charts for the years in which the alleged incidents occurred.” (Id.) Defendants further assert here that the oversight of Plaintiffs’ deficiency letter “was unintentional” and “will be remedied accordingly.” (Id. at 6.)
2. The Kough Cases
On August 20, 2019, the Court issued the following Text Order in the Kough cases:
TEXT ORDER. Discovery in this case ended February 28, 2019. (Dkt. No. 70.) However, the parties have communicated with the Court that they have come to an agreement to extend the discovery period for the limited purpose of the Defendants supplementing [certain] discovery responses to Plaintiffs Requests for Production. Plaintiff also explains he intends to depose Tom Roth on September 30, 2019. On the parties consent, the Court therefore grants a limited opening of discovery for Defendant to supplement their responses to Plaintiffs 2nd RFP # 13; 3rd RFP # 11; 4th RFP #s 5, 6, 7, 9, 10, and 11; and 5th RFP #s 6, 18, and for the deposition of Tom Roth. The supplemental responses to Plaintiffs RFPS must be completed by August 30, 2019, and the deposition for Tom Roth must be completed by September 30, 2019. Plaintiff may supplement his response to the pending Motion for Summary Judgment by October 11, 2019, and Defendants can supplement their reply to their Motion for Summary Judgment by October 24, 2019. IT IS SO ORDERED.
(Kough Dkt. No. 115.)
Plaintiffs have attached to their Motion their discovery requests that remain outstanding in the Kough cases, including requests for videos/photographs and post charts. (Dkt. No. 129-2.) Plaintiff alleges here that they “received an email from SCDC counsel on September 3, 2019 stating that an affidavit would be produced.” (Dkt. No. 129 at 13.) Plaintiffs assert that no affidavit has yet been produced, “nor has any supplemental documentation production been received.” (Id.) Defendants offer no arguments/statements that are specifically responsive to Plaintiffs’ allegations about the outstanding discovery in Kough.
Plaintiffs argue that they have been prejudiced by Defendants’ above described conduct because Plaintiffs now have “an unreasonable burden ... to overcome every motion filed against them.” (Dkt. No. 131 at 9.) Plaintiffs assert that Defendants’ “delay tactics are directed at preventing [Plaintiffs] from being able to adequately build their cases, and Plaintiffs cannot adequately “respond to the Summary Judgment Motions.” (Id.)
B. Roth Report Related Issues
As noted, Plaintiffs also allege sanctions are warranted due to Defendant SCDC's conduct regarding various discovery issues related to the Roth Report. As background, the Roth Report was drafted by Tom Roth (“Mr. Roth”) in connection with a settlement of another case against SCDC (the “Mental Health Settlement”). The report is dated March 2018 and analyzes 13 SCDC institutions, including the institutions at issue in these cases. The report provides a “security staffing assessment” based on documentation reviews, staff interviews, and on-site assessments. (Bartlett Dkt. No. 142 at 9.) It analyzes how staffing at these 13 SCDC institutions has impacted the number of contraband related incidents and incidents of assault. According to the report, the on-site facility visits began in September 2017. (Id.) The report states that “In September 2017 a document and data request for materials pertinent to the project was submitted. SCDC was extremely responsive to the request and has continued to be supportive throughout the project.” (Id.) The report lists numerous categories of documents that were “requested and reviewed.” (Id.)
*6 Here, Plaintiffs discuss four specific discovery issues related to the Roth Report: (1) Defendant SCDC's delayed disclosure and production of the Roth Report; (2) Defendant SCDC's interference with Mr. Roth's deposition; (3) Defendant SCDC's filing of a motion for protective order to prevent the release of certain communications between Mr. Roth and SCDC; and (4) Defendant SCDC's failure to produce the documents from SCDC that Mr. Roth relied upon to draft his report. The undersigned considers Plaintiffs’ allegations regarding these discovery issues in turn.
1. Delayed Disclosure and Production of Roth Report
Plaintiffs assert that “[d]uring the normal course of discovery each of the Plaintiffs requested the following: please provide copies of any and all reports, studies, memorandums, and/or other Documents developed by SCDC or any outside individual or entity regarding safety and security at [institution specific name] from [given time frame].” (Dkt. No. 129 at 15.) Plaintiffs assert that these requests were sent as early as January 17, 2019, and the requests would have, at minimum, “included the Roth Report.” (Id.)
According to Plaintiffs, they did not become aware of the Roth Report until certain South Carolina newspapers mentioned the report's existence in articles dated January 12, 2019 and April 11, 2019.[5] (Id. at 15–16.) These articles referenced a report that was drafted by Mr. Roth and commissioned by SCDC. The articles noted that the report discussed SCDC's staffing levels and the impact of staffing on SCDC operations. Plaintiffs assert that “[u]pon notification of the above articles, the Plaintiffs informed the Defendants of the Report and that it would be responsive to the Plaintiffs’ discovery requests.” (Id. at 16.) Plaintiffs claim that Defendant SCDC “still refused to produce this Report or provide contact information to allow the Plaintiffs to depose Mr. Roth—arguing it was irrelevant and privileged.” (Id.)
A review of the records in these cases shows the following:
Bartlett, Battle and Wilson (18-50)
On June 5, 2019, the undersigned held a discovery hearing in Bartlett and the Battle cases. Following that hearing, the Court issued orders in these respective cases. Relevant here, the Court issued an Order in both cases, stating:
At the hearing, Plaintiffs’ counsel raised the issue of deposing Mr. Roth, an individual who drafted the “Roth Report” for the Mental Health Settlement. Plaintiffs indicated that they had obtained a redacted version of the Roth Report because it was produced in other litigation. They asked that the Court compel Defendants: (1) to produce the unredacted Roth Report and (2) to disclose Mr. Roth's home address so that Plaintiffs’ counsel could serve him with a notice of his deposition. Following the hearing, the Court issued an Order directing Defendants to provide the Court with an unredacted copy of the Roth Report. The Court also later directed Plaintiffs’ counsel to submit the redacted version of the Roth Report in their possession so that the Court could compare the two documents.
*7 After the documents were submitted, the Court stated that it had reviewed both versions of the Roth Report and found “the entire Roth Report should be produced to Plaintiffs’ counsel, in unredacted form.” The Court found the Roth Report is relevant to the issues in this case as it “addresses the understaffing issues faced by” SCDC. The Court further found that the report “is only tangentially related to the Mental Health Settlement, and it is not subject to confidentiality in relation to the Mental Health Settlement. The Court ordered Defendants to produce to Plaintiffs’ counsel the entire unredacted Roth Report by Monday June 10, 2019. The Court further found that because “Mr. Roth could be a fact witness in this case,” Defendants had to disclose to Plaintiffs’ counsel Mr. Roth's home address by June 10, 2019 so that he could be served a notice of his deposition. (Bartlett Dkt. No. 67; Battle Dkt. No. 102.)
Defendants appealed both these Orders. The District Judges in the respective cases overruled the Defendants’ objections and affirmed the undersigned's Orders. Specifically, in Bartlett, District Judge Gergel entered an Order on June 10, 2019, in which he discussed the Roth Report at length. He stated, inter alia,
While the Mental Health Settlement focused on necessary changes to mental health care in SCDC, the Roth Report was focused on staffing levels in general and, as noted by the Magistrate Judge, was only tangentially related to the Mental Health Settlement. Indeed, the Roth Report makes clear that its staffing levels and workload responsibilities were determined based on multiple factors, and not solely the Mental Health Settlement. Further, even if the Roth Report was more closely connected to the Mental Health Settlement, the Roth Report is not covered by the confidentiality provisions of the Mental Health Settlement.
(Bartlett Dkt. No. 79 at 3.) Judge Gergel found there was no applicable settlement privilege with respect to discovery in this circuit and emphasized that “the Roth Report is clearly relevant: it addresses understaffing issues at the SCDC, and the Complaint specifically includes allegations regarding understaffing.” (Id. at 4.) Judge Gergel further rejected Defendants’ argument that the Roth Report was protected by work-product privilege. Judge Gergel also stated,
Defendants position here is particularly surprising given the fact that a lightly redacted version of the Settlement has previously been disclosed via a FOIA request and reported on by the Post and Courier. The Roth Report contains clearly relevant information not subject to any privileges and therefore must be produced. The Roth Report remains subject to the Magistrate Judge's Confidentiality Order, and this Order relates solely to discovery and not ultimately admissibility.
Similarly, in the Battle cases, District Judge Cain affirmed the undersigned's Order on July 12, 2019. In his Order, Judge Cain found, inter alia, “the Roth Report is clearly relevant as it addresses understaffing at SCDC, and Plaintiff alleges his injuries were the direct and proximate result of, inter alia, insufficient staffing.” (Battle Dkt. No. 114 at 1.) Judge Cain found the Roth Report was not subject to confidentiality under the Mental Health Settlement or otherwise privileged. (Id. at 3–4.) Judge Cain ordered Defendants to provide to Plaintiffs by July 26, 2019, “the remaining documents which were ordered by the magistrate judge to be produced.” (Id. at 5.)
Similarly, in Wilson (18-50), District Judge Gergel held a discovery hearing on July 11, 2019. (Wilson (18-50) Dkt. No. 125.) Judge Gergel entered an Order the next day in which he referenced his July 10, 2019 Order in Bartlett and found that “Plaintiff is entitled to Tom Roth's report and his address in order to notice a deposition. Defendants must produce Roth's address by 11:59 pm on the date of this Order. To the extent Plaintiff seeks underlying facts and data from Roth, that information is best secured through a subpoena under Rule 45.” (Wilson (18-50) Dkt. No. 126.)
Plaintiffs assert that “the unredacted Roth Report was finally produced on or about July 23, 2019, seven months after its original request and way beyond the discovery deadlines in most of the above captioned cases.” (Dkt. No. 129 at 20.) Defendants contend that they produced the Roth Report on July 19, 2019 in Bartlett, and on August 1, 2019 in the Battle cases. They do not specify when the Roth Report was produced in the other cases. Defendants offer little explanation for their conduct related to the delayed disclosure and production of the Roth Report. They offer no reason for their failure to disclose the Roth Report in response to Plaintiffs’ discovery requests.
2. Interference with Mr. Roth's Deposition
Plaintiffs assert that in addition to Defendants’ delay in providing Mr. Roth's home address, Defendants further interfered with Mr. Roth's deposition. Specifically, on July 24, 2019, the Plaintiffs in Bartlett and Wilson (18-50) served Mr. Roth with a deposition subpoena, setting his deposition for September 30, 2019, to be taken by video. (Id.) Mr. Roth filed a motion to quash the subpoena in federal court in Illinois. The action was then transferred to this district on September 9, 2019, after Plaintiffs moved for the transfer. Plaintiffs allege that through “document production,” they have discovered that Mr. Roth's motion to quash “was filed at the direction of Defendant SCDC.” (Dkt. No. 129 at 21.) Plaintiffs did not file a response to the motion to quash, and Mr. Roth voluntarily withdrew his motion on September 16, 2019.
Notably, Defendants filed a response to Mr. Roth's motion to quash that same day, in which they stated, inter alia,
SCDC does not claim any contractual confidentiality to prevent Tom Roth from participating in this Court ordered deposition under the Consulting Agreement [between Mr. Roth and SCDC].
SCDC does not take a position on the motion to quash aside from the assertion that Mr. Roth should be granted reasonable protection from the court: specifically, his claim for reasonable compensation secondary to his prior work as an expert in the mediated settlement of an unrelated South Carolina lawsuit, and for reasonable accommodations regarding the time and place of the deposition.
(Case No. 2:19-mc-310-RMG-MGB Dkt. No. 28 at 2.)
Plaintiffs argue that Defendant SCDC's alleged interference with Mr. Roth's deposition demonstrates its “continued ... attempts to intentionally obstruct the discovery process.” (Dkt. No. 129 at 21.) Defendants do not specifically respond to the allegations relating to Mr. Roth's motion to quash. They state that “the deposition of Tom Roth was going to be taken in these cases, and the costs associated with the deposition of Tom Roth have not prejudiced the plaintiff. The costs associated with the deposition of Tom Roth would have been incurred by Plaintiffs without any discovery disputes.” (Dkt. No. 130 at 6.)
3. Defendant SCDC's Motion for Protective Order
Plaintiffs next assert that Defendants’ “abusive conduct continued” when Defendants filed a motion for protective order on September 23, 2019, seeking protection of “the communications between Tom Roth and SCDC.” (Dkt. No. 129 at 22.) Defendants filed this motion for protective order in Bartlett, the Battle cases, and both Wilson cases. Defendants did not file this motion in the Kough cases.
*9 In their motion for protective order, Defendants sought a court order that “certain communications between a non-party witness, Tom Roth, and SCDC, are entitled to protection.” (Bartlett Dkt. No. 111 at 6.) Defendants attached a description of the communications at issue as exhibits to their motion. (Bartlett Dkt. Nos. 111-1; 111-2.)
This motion for protection arose out of issues raised in the related action regarding Mr. Roth's motion to quash. Specifically, the subpoenas issued to Mr. Roth in Bartlett and Wilson (18-50) instructed Mr. Roth to bring certain documents with him to the deposition including, inter alia, “copies of all materials used in the preparation of [his] report” and “copies of any correspondence with any SCDC counsel or employees.” (Case No. 2:19-mc-310-RMG-MGB Dkt. No. 10-1 at 3–6.) In his motion to quash, Mr. Roth stated that the “documents requested in the subpoena are all duplicative of documents that can easily be obtained from SCDC, a party to the lawsuit.... Each of the documents requested is duplicative of what is available from SCDC, Mr. Roth has no physical copies of any requested documents.” (Case No. 2:19-mc-310-RMG-MGB Dkt. No. 10 at 2–3.) On September 16, 2019, the same day Mr. Roth withdrew his motion to quash, Defendants filed a response to Mr. Roth's motion, stating, inter alia:
SCDC does not maintain in the ordinary course of business the records and materials provided to Mr. Roth for use during his period as a consultant for SCDC. To the contrary, Mr. Roth was retained specifically as part of the settlement of mental health lawsuit and its implementation. Upon information and belief, these communications should be afforded protection under the ADR rules of the South Carolina courts.
Notwithstanding Defendants lack of ordinary business records regarding Mr. Roth's work, SCDC is gathering documents and other materials that are known to have been provided Tom Roth for use in his work as a consultant for SCDC. Defendants seek to present these documents in camera for Court review based upon an assertion of privileges [including attorney client privileges afforded to Salley Elliott, in-house counsel] related to this settlement. The bulk of the communications are logistical in nature. The balance of the communications are directly and inextricably tied to the protected communications relating to the terms of the mental health settlement and scope of Mr. Roth's role in that settlement process.
SCDC acknowledges that, in accordance with the confidentiality provisions contained in the consulting agreement between Tom Roth and SCDC, Mr. Roth did not retain any documentation, information, correspondence or other property of any kind or nature once his work under the consulting agreement was complete.
(Case No. 2:19-mc-310-RMG-MGB Dkt. No. 28 at 1–2.)
On September 18, 2019, the undersigned entered a text order in the motion to quash action as well as in Bartlett and Wilson (18-50), noting that a telephonic status conference had been held that day “to discuss the parties’ discovery disputes as to certain documents related to Thomas Roth's subpoena and the Roth Report.” The text order further stated,
The parties informed the Court that Mr. Roth has mailed SCDC a flash drive containing his communications with SCDC. The Court directed defense counsel for SCDC to inform the Court as soon as SCDC receives the flash drive. In addition, after defense counsel reviews the flash drive, he is to send a copy of the flash drive to the Court by express overnight delivery or by hand delivery....
*10 (Bartlett Dkt. No. 104.)
On September 20, 2019, the undersigned entered a text order in Bartlett and Wilson (18-50) directing Defendants to file a status report by September 23, 2019, “indicating whether he consents to the production of all the documents on the flash drive.” The text order further stated,
To the extent Mr. Holler does not consent, he must specify which documents he does not think should be produced and provide argument for their protection....
(Bartlett Dkt. No. 109.)
On September 23, 2019, Defendants filed the motion for protective order at issue. In Defendants’ motion for protection, Defendants proffered arguments that were mostly rejected by the Court in prior orders. For example, Defendants argued that the communications were protected by a settlement privilege, and that the communications were not relevant. (Bartlett Dkt. No. 111.) The undersigned rejected these arguments in an Order issued on September 25, 2019, noting that with respect to “the communications at issue[,] [a]ll of the emails and almost all of the attachments to those emails pertain to: (1) Tom Roth's efforts to gather information needed to draft his Report; or (2) Tom Roth's findings made in the Report relevant to staffing levels.” (Bartlett Dkt. No. 117 at 8.) The Court repeated its findings made in prior orders that the Roth Report is relevant, and stated, “For the same reasons the Court has previously found the Roth Report to be relevant, the communications and attachments at issue are likewise relevant to this case.” (Id. at 9.) The Court ordered Defendants to “immediately produce” the communications that the Court found discoverable. (Id.)
Plaintiffs argue that the motion for protection was “frivolous, in bad faith and ... unjust.” (Dkt. No. 129 at 29.) Defendants first respond that “Plaintiffs did not request the communications between SCDC and Tom Roth as was done in” Wilson (18-50). (Dkt. No. 130 at 7.) Here, Defendants seem to ignore Plaintiffs’ deposition subpoena to Mr. Roth, which expressly requested his communications with SCDC. As discussed above, Mr. Roth eventually produced a flash drive of his communications with SCDC and those communications, initially produced by Mr. Roth, are at issue here. This deposition subpoena was issued in Wilson (18-50) and Bartlett. In addition, Plaintiffs state this deposition was noticed in all of the other cases in issue, other than Wilson (17-3032). Defendants do not dispute Plaintiffs’ assertion. Thus, there is no basis to find Plaintiffs have not requested these communications in the cases at issue, other than in Wilson (17-3032).
Defendants next respond that their motion for protective order was appropriate given the Court's September 18, 2019 Text Order. (Dkt. No. 130 at 7.) Defendants contend that Plaintiffs “are in possession of the communications between Tom Roth and SCDC, including the documents provided therein.” (Id. at 8.)
4. Failure to Produce Documents Provided to Mr. Roth by SCDC
Relatedly, Plaintiffs assert that Defendants failed to produce “the underlying information which formed the basis of the Roth Report.” (Dkt. No. 129 at 24.) Relevant here, on September 20, 2019, the undersigned entered a text order in Bartlett and Wilson (18-50) stating, inter alia,
*11 [B]y noon on Monday, Sept. 23, 2019, both parties must file a Status Report on the production of records that Mr. Roth states he relied on in creating the Roth Report, as outlined on pages 9 through 10 of the Roth Report, and as discussed at the Sept. 18, 2019 Status Conference.
(Bartlett Dkt. No. 109.)
Plaintiff filed a Status Report on September 23, 2019, stating that they “have not received any documents responsive to their request for records that Mr. Roth states he relied on in creating the Roth Report nor have the Plaintiffs received any update by the Defendants regarding the status of the above referenced production since the Status Conference.” (Bartlett Dkt. No. 110.) Defendants filed a Status Report that same day, stating only, “Defendants move for an extension to file a status report pursuant to ECF 162. Defendants have had insufficient time to confer with their clients to determine what Tom Roth considered in his assessment other than what has been listed in the Roth Report, p. 9-10.” (Bartlett Dkt. No. 112 (emphasis added).) Notably, Defendants’ Status Report did not address any efforts to produce the documents that Mr. Roth stated he relied on as listed in the Roth Report, pages 9-10.
On September 24, 2019, Plaintiffs filed a Motion for Oral Arguments, Expedited Motion for Production of Records, and Motion for Sanctions. (Bartlett Dkt. No. 114.) Plaintiffs’ motion asked for the “Production of Records, previously ordered, regarding Tom Roth's communications with SCDC and the underlying documents he reviewed in making his Report.” (Id. at 2.)
In a September 25, 2019 Order, the undersigned addressed Plaintiffs’ Motion for Oral Arguments, Expedited Motion for Production of Records, and Motion for Sanctions. The Court cited Judge Gergel's July 12, 2019 Order in Wilson (18-50), in which he stated, “To the extent Plaintiff seeks underlying facts and data from Roth, that information is best secured through a subpoena under Rule 45.” (Wilson (18-50) Dkt. No. 117 at 10–11.) The Court then recounted the procedural history relating to Plaintiffs’ efforts to obtain the documents Roth relied on in drafting his report. (Id. at 11–12.) The Court found it was unclear “why Defendants have failed to produce the documents Mr. Roth relied on in making his Report, particularly the documents listed on pages 9 and 10 of the Report.” (Id. at 12.) The Court further stated,
The record is inconsistent as to whether these documents are unavailable to SCDC. While Defendants have maintained that SCDC did not keep a list of the materials Mr. Roth reviewed, the documents are detailed on pages 9-10 of the Roth Report and Defendants have been able to produce certain communications between SCDC and Mr. Roth. The Court therefore GRANTS Plaintiffs’ Motion for Production of Records that Mr. Roth reviewed in making his Report. Accordingly, Defendants are ORDERED to produce, immediately, to Plaintiffs’ counsel all documents Mr. Roth relied on from SCDC to draft his Report.
(Id.)
Plaintiffs assert that in their review of the communications between Mr. Roth and SCDC, “it became apparent that Mr. Roth was supplied with hundreds of documents from SCDC via email.” (Dkt. No. 129 at 24.) Plaintiffs contend, “a simple search on [SCDC's] email serves or accounts to the email address related to Tom Roth should produce a variety of emails. To date nothing has been produced. The underlying documents provided to Tom Roth were not produced because SCDC claimed that they could not be identified. We now know that to be misleading and false.” (Id.)
*12 Here, Plaintiffs cite two email systems used by SCDC, Barracuda Networks and Safely Send. (Id. at 25.) Plaintiffs contend that Barracuda Networks advertises that it provides a full cloud-based backup of every email. (Id.) Plaintiffs assert that Safely Send allows users to extend access to emails “if needed,” and it “automatically archives” emails. (Id. at 25–26.) Plaintiffs further contend that it is SCDC's policy that all emails are archived for five years. (Id. at 25.) Plaintiffs do not specify what SCDC policy they are referring to here, however.
According to Plaintiffs, “SCDC made no attempts to produce the[ ] documents [that they provided to Mr. Roth] and purposely setup a system whereby documents could be transmitted in an effort to avoid detection and discovery.” (Id. at 27.) Plaintiffs contend that as a result of Defendants’ conduct here, they have “lost their ability to question the witness, Mr. Roth, regarding each underlying document and to allow their own expert to review the documents. In addition, the time spent to obtain this information was substantial and took away from other tasks in the litigation and preparing for the deposition itself.” (Id.) Plaintiffs “seek an order which finds that the lost information was unfavorable to all Defendants in this matter and the jury should be instructed that it must presume that the information was unfavorable to the Defendants or in the alternative enter default judgment against SCDC.” (Id.)
Defendants respond that “SCDC did not and does not maintain a record of those documents that were provided to Tom Roth for his review during the creation[ ] of the Roth Report.” (Dkt. No. 130 at 6.) Defendants contend that “At the time of the creation of the Roth Report, SCDC was not aware that Plaintiffs would bring these lawsuits and did not have a duty to maintain such a list in anticipation of litigation. Therefore, sanctions ... are unwarranted.” (Id. at 7.) However, Defendants do not address why they could not search for the documents listed on pages 9 and 10 of the Roth Report—the Report expressly specified that the documents listed here were “pertinent to the project” and were “reviewed.” (Dkt. No. 142 at 9.)
Defendants further contend that the email communications produced to Plaintiffs on September 24, 2019 “were sent several years ago” and the latest email in that group was sent November 3, 2017. (Dkt. No. 130 at 9.) Defendants contend that “SCDC no longer has access to the secure messages” because the emails expire in Barracuda Networks 30 days after they are sent, and they expire in Safely Send 15 days after they are sent. (Id.) Defendants contend that Plaintiffs cannot show that sanctions are appropriate under Rule 37(e) of the Federal Rules of Civil Procedure.
C. Sanctions Sought by Plaintiffs
In the conclusion section of their Sanctions Motion, Plaintiffs ask that Defendant SCDC: (1) pay all reasonable expenses incurred with fighting any discovery motions (including but not limited to all Motions for Protective Orders, all Motions to Quash, all Motions to Compel, and the instant Motion for Sanctions); and (2) be required to pay all attorney's fees, which total approximately 400-500 hours of legal work. (Dkt. No. 129 at 33.) Where Defendants allegedly violated Court Orders, Plaintiffs ask that: (1) the Court direct that the matters embraced in the Orders or other designated facts be taken as established for purposes of each action; (2) prohibit Defendant SDCD from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (3) strike the Defendants’ pleadings in whole or in part; and/or (4) dismiss the action or proceeding in whole or in part. (Id.) Finally, with respect to “any electronic information that has been destroyed,” Plaintiffs ask that the Court “order that any lost information be deemed unfavorable to SCDC, instruct the jury that it may or must presume the information was unfavorable to the party; and/or dismiss the action [sic] or enter a default judgment.” (Id. at 33–34.)
*13 Additionally, Plaintiffs assert that “additional discovery is warranted and necessary to determine the scope of sanctionable conduct and all the identities of the culpable parties.” (Id. at 32.) Plaintiffs maintain that the Court “should authorize targeted discovery under its inherent authority to ensure that the full scope of SCDC's misconduct is exposed and to ensure answers to key questions about Defendants’ actions and to what extent particular employees or agents of Defendants intentionally withheld information.” (Id. at 32–33.)
D. Analysis and Rulings/Recommendations
As an initial matter, given the comprehensive records in these cases, and the parties’ extensive briefing, the undersigned finds a hearing is not necessary to rule on the Sanctions Motion. See Local Civil Rule 7.08 D.S.C. (“Unless so ordered, motions may be determined without a hearing.”). Likewise, additional discovery specific to the sanctions issue is not warranted. Upon careful review of the record in each of the above cases and with significant consideration of the arguments put forth by the parties, the undersigned finds that the following sanctions are appropriate:
Failure to Supplement Responses
With respect to Plaintiffs’ allegations set forth supra in section A, the undersigned finds sanctions under Federal Rules of Civil Procedure 37(a)(5)(A) and 37(c) are applicable and appropriate. The record indicates Defendant SCDC has failed to supplement certain responses to Plaintiffs’ discovery requests in Bartlett, the Battle cases, and the Kough cases, in direct violation of Court Orders in those cases. Based upon the briefings, it appears Defendant SCDC has still failed to produce the following items: (1) the requested videos/photographs or a sworn affidavit in the Battle cases; (2) the requested 2015 post chart or sworn affidavit in Bartlett; and (3) the requested videos/photographs and post charts or sworn affidavit in the Kough cases. Defendants indicate that the majority of these requested items are forthcoming. However, as discussed above, Defendants reference a video that may be relevant to the incidents alleged in Drake and Brown, and are vague as to whether SCDC will produce this video. Defendants offer no reason for SCDC's continued failure to produce these items.
In light of the foregoing, the undersigned finds that Defendants’ failure to provide supplemental responses to Plaintiffs’ discovery requests under Rule 26(e) is not substantially justified or harmless. Reed, 2014 WL 2967920, at *2 (“The determination of whether a Rule 26(a) or (e) violation is justified or harmless is entrusted to the broad discretion of the district court.”). Accordingly, the undersigned finds that Defendant SCDC must pay Plaintiffs’ reasonable expenses in making the underlying motions to compel and preparing for the hearings related to those motions, including attorneys’ fees, pursuant to Rule 37(a)(5)(A). More specifically, Defendant SCDC must pay the reasonable expenses associated with the following: (1) in Bartlett, Dkt. No. 59; and the June 5, 2019 hearing (Dkt. No. 64); and (2) in the Battle cases, Dkt. No. 97 and the hearings on May 7, 2019 (Dkt. No. 93) and June 5, 2019 (Dkt. No. 99).[6] In addition, the undersigned recommends that if Defendant fails to produce any of the above requested items to Plaintiffs by April 30, 2020, the Court should: (1) prohibit Defendants from later introducing these items as evidence at trial; and (2) inform the jury of SCDC's failure to provide this information.[7] See Rule 37(c), Fed. R. Civ. P.
Delayed Disclosure and Production of Roth Report
*14 Relatedly, as discussed supra section B.1, the record indicates that Defendant SCDC failed to disclose the Roth Report in response to Plaintiffs’ discovery requests and then contested the production of this report for an extended period of time, causing Plaintiffs to file several motions to compel. Defendants offer no reason for their failure to disclose the existence of the Roth Report in response to Plaintiffs’ discovery requests. The undersigned finds that Defendant SCDC's failure to produce the Roth Report or a privilege log identifying the existence of the Roth Report in its supplemental responses to Plaintiffs’ discovery requests under Rule 26(e) was not substantially justified or harmless.[8] Reed, 2014 WL 2967920, at *2. Based on the foregoing, the undersigned finds that Defendant SCDC must pay Plaintiffs’ reasonable expenses in making the motions to compel relating to the production of the Roth Report and preparing for the hearings related to those motions, including attorneys’ fees, pursuant to Rule 37(a)(5)(A). More specifically, Defendant SCDC must pay the reasonable expenses associated with the following: (1) in Bartlett, Dkt. No. 59; and the June 5, 2019 hearing (Dkt. No. 64); and (2) in the Battle cases, Dkt. No. 97 and the hearings on May 7, 2019 (Dkt. No. 93) and June 5, 2019 (Dkt. No. 99).
Filing of Motion for Protective Order
Additionally, in granting Plaintiffs’ various motions to compel, referenced above, the Court established its position that the Roth Report is relevant and discoverable. Given this well-established position, the undersigned finds sanctions are appropriate based on Defendants’ filing of the September 23, 2019 motion for protective order, pursuant to Local Civil Rule 7.09. Specifically, Defendants filed a motion to protect certain communications between SCDC and Mr. Roth. The undersigned largely denied the motion for protective order in a September 25, 2019 Order, finding that “the communications at issue[,] [a]ll of the emails and almost all of the attachments to those emails pertain to: (1) Tom Roth's efforts to gather information needed to draft his Report; or (2) Tom Roth's findings made in the Report relevant to staffing levels.” (Bartlett Dkt. No. 117 at 8.) The Court repeated its findings made in prior orders that the Roth Report is relevant, and stated, “For the same reasons the Court has previously found the Roth Report to be relevant, the communications and attachments at issue are likewise relevant to this case.” (Id. at 9.) The Court ordered Defendants to “immediately produce” the communications that the Court found discoverable. (Id.) In short, there was no basis for Defendants to contest the production of those communications pertaining to the Roth Report, given the Court's extensive rulings on the discoverability of the Roth Report. Thus, the undersigned can only conclude that the motion was largely filed to unreasonably delay the production of the communications at issue. Accordingly, the undersigned finds that Defendant SCDC must pay Plaintiffs’ reasonable expenses in filing their opposition to Defendants’ motion for protective order, including attorneys’ fees.[9] (See, e.g., Bartlett Dkt. No. 114.)
Failure to Produce Documents Provided to Mr. Roth by SCDC
Finally, Plaintiffs have made certain allegations concerning SCDC's failure to produce the documents from SCDC that Mr. Roth relied on in drafting his report. As discussed supra in section B.4, SCDC's failure to produce these documents is in direct violation of the undersigned's September 25, 2019 Order. This Order granted Plaintiffs’ motion for production of records that Mr. Roth reviewed in making his report. (Bartlett Dkt. No. 117.) The undersigned finds SCDC's failure to produce these documents is not substantially justified. More specifically, while Defendants contend they do not have a list of the documents Mr. Roth reviewed, the Roth Report itself provides a rather comprehensive list of categories of documents Mr. Roth reviewed. (Bartlett Dkt. No. 142 at 9.) Defendants have entirely failed to address why they cannot produce the documents listed in the Roth Report. Based on the foregoing, the undersigned finds that Defendant SCDC must pay Plaintiffs’ reasonable expenses in filing their motion for production of records, including attorneys’ fees, pursuant to Rule 37(a)(5)(A). (See, e.g., Bartlett Dkt. No. 114.)
Loss of Electronically Stored Information (“ESI”)
*15 Relatedly, as also discussed supra section B.4, SCDC apparently failed to preserve certain emails containing documents Mr. Roth reviewed in drafting his report. According to Defendants, the email communications produced to Plaintiffs on September 24, 2019 “were sent several years ago” and the latest email in that group was sent November 3, 2017. (Dkt. No. 130 at 9.) Defendants contend SCDC “no longer has access to the secure messages.” (Id.) Plaintiffs assert that sanctions are warranted pursuant to Rule 37(e), Fed. R. Civ. P. Before a court may impose sanctions pursuant to Rule 37(e), four threshold requirements must be established: (1) ESI should have been preserved; (2) ESI was lost; (3) the loss was due to a party's failure to take reasonable steps to preserve the ESI; and (4) the ESI cannot be restored or replaced through additional discovery. In re: Ethicon, Inc., No. 2:12-cv-00497, 2016 WL 5869448, at *3 (S.D.W. Va. Oct. 6, 2016). After these threshold elements are satisfied, “Rule 37(e) next establishes two different avenues parties can take to demonstrate that sanctions are warranted ....” Id. “The first avenue, Rule 37(e)(1), requires a court to make a finding of prejudice before sanctions may be warranted. The second avenue, Rule 37(e)(2), requires a court to make a finding that a party acted with the intent to deprive the opposing party” of the ESI prior to imposing sanctions. Id.
Here, Defendants argue that Plaintiffs have not shown: (1) the information should have been preserved in anticipation of litigation; (2) that Plaintiffs are prejudiced by the deletion; and (3) that Defendants acted with the intent of depriving them of such information in the present litigation. (Dkt. No. 130 at 9.) Defendants argue that sanctions under Rule 37(e) are therefore inappropriate. (Id.)
“It is well established that the duty [to preserve evidence] is triggered, at the latest, when the defendant is served with the complaint.” In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 512 (S.D. W. Va. 2014) (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010)). Here, Defendants ignore the fact that the Roth Report is dated March 2018. While the report states that Mr. Roth sent a data request for materials “pertinent to the project” in September 2017, it does not specify when the requested documents were actually received by Mr. Roth. (Bartlett Dkt. No. 142 at 9.) The report states that “SCDC was extremely responsive to the request and has continued to be supportive throughout the project.” (Id.) Based on these statements, it is reasonable to conclude that SCDC provided documents to Mr. Roth from September 2017 until the report was released in March 2018.
The record shows that SCDC was served with the complaint in the majority of these cases before March 2018. Specifically, SCDC was served the complaint in Bartlett “on or about October 24, 2017 (Dkt. No. 1); SCDC was served the complaint in Wilson (17-3032) “on or about October 23, 2017” (Dkt. No. 1); and SCDC was served the complaint in the Kough cases “on or about October 6, 2017” (Dkt. No. 1). The complaints in these cases all concern prison violence and understaffing within SCDC. Based on the foregoing, the undersigned finds SCDC had a duty to preserve any emails, and the attachments to those emails, sent to Mr. Roth regarding the Roth Report after October 6, 2017. Thus, these emails and related attachments should have been preserved in anticipation of litigation.
It is undisputed that any emails not already provided to Plaintiffs cannot be recovered by SCDC. Thus, the issue is whether this loss is due to SCDC's failure to take reasonable steps to preserve the emails. There is no evidence SCDC could not have preserved the relevant emails to Mr. Roth, had it chosen to do so at the time the emails were sent to Mr. Roth. Accordingly, the undersigned finds SCDC failed to take reasonable steps to preserve the emails. Finally, there is no basis to find the documents at issue can be restored or replaced through additional discovery. As Plaintiffs contend, these documents are solely in SCDC's possession. Defendants do not dispute this contention.
Having found the four threshold requirements to imposing sanctions under Rule 37(e) are met, the undersigned finds sanctions are warranted because Plaintiffs have been prejudiced by the loss of this ESI. There is no question that the documents SCDC supplied to Mr. Roth were used to analyze prison violence and staffing levels at SCDC as set forth in the Roth Report. One issue raised in many of these cases is what the various SCDC employees knew about the violence and staffing levels at their respective SCDC institution. The documents at issue are directly relevant to establishing the requisite knowledge necessary to support an Eighth Amendment failure to protect claim. As Plaintiffs note, they did not have the benefit of questioning the SCDC employee defendants about these documents during various depositions. Accordingly, the undersigned finds Plaintiffs have been prejudiced by the loss of this ESI pertaining to the SCDC documents Mr. Roth reviewed in drafting his report.
*16 “[U]pon finding prejudice to another party from loss of the information, [the court] may order measures no greater than necessary to cure the prejudice ....” Fed. R. Civ. P. 37(e)(1). When imposing sanctions under Rule 37(e)(1), “[t]he range of [curative] measures is quite broad” and “much is entrusted to the court's decision.” Fed. R. Civ. P. 37(e) advisory committee's note.
In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than [adverse inference instructions].
Based on the foregoing, the undersigned recommends imposing the following sanctions with respect to the Kough cases, Bartlett, and Wilson (17-3032), pursuant to Rule 37(e): (1) SCDC cannot contest the contents of the Roth Report at trial because the documents underlying the report have not been preserved; and (2) at trial, the Court should allow Plaintiffs to present evidence and argument to the jury regarding the loss of this information.
However, the undersigned finds that an adverse jury instruction and/or default judgment is not warranted under Rule 37(e)(2) because the stringent intent requirement under this Rule has not been satisfied. Fed. R. Civ. P. 37(e)(2) (reserving the harshest discovery sanctions, such as adverse inference instructions, dismissals, or default judgments, only for cases in which the court can “fin[d] that the [spoilating] party acted with the intent to deprive another party of the information's use in the litigation”).
Sanctions Specific to Wilson (18-50)
Defendants assert that because SCDC is not a named Defendant in Wilson (18-50), Plaintiff cannot seek sanctions against SCDC as a nonparty pursuant to Rule 37, Fed. R. Civ. P. (Wilson (18-50) Dkt. No. 199 at 2–4.) Plaintiffs do not respond to this argument. The undersigned agrees that sanctions under Rule 37 are limited to parties to litigation. However, “[i]t is well-settled that a federal court, acting under its inherent authority, may impose sanctions against litigants or lawyers appearing before the court so long as the court makes a specific finding that they engaged in bad faith conduct.” In re White, No. 2:07-cv-342, 2013 WL 5295652, at *30 (E.D. Va. Sept. 13, 2013) (quoting In re Yorkshire, LLC, 540 F.3d 328, 332 (5th Cir. 2008)). Relying on this inherent authority, one court in this district has found that to impose sanctions on a nonparty, the “non-party not subject to court order must (1) have a substantial interest in the outcome of the litigation and (2) substantially participate in the proceedings in which he interfered.” Id. at *31 (citations omitted). However, before engaging in this analysis, the Court must first make a specific finding that SCDC engaged in bad faith conduct. In re White, 2013 WL 5295652, at *30; see also Hensley v. Alcon Labs., Inc., 277 F.3d 535, 543 (4th Cir. 2002) (“[U]nder its inherent powers, the district court has authority to shift attorneys fees, but again only in the extraordinary circumstances where bad faith or abuse can form a basis for doing so.”). Here, the allegations specific to Wilson (18-50) are discussed supra in section B.1, and concern the delayed disclosure and production of the Roth Report. Based on the evidence in the record, the undersigned does not find that SCDC engaged in bad faith conduct sufficient to impose sanctions against this nonparty. While Plaintiffs make additional allegations in their Sanctions Motion specific to Wilson (18-50), those allegations are further explored in a Second Amended Motion for Sanction Plaintiff filed only in Wilson (18-50).[10] The undersigned will address those allegations in a separate ruling specific to Wilson (18-50).
CONCLUSION
*17 For the foregoing reasons, the undersigned GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion for Sanctions (Dkt. No. 129.) Specifically, the undersigned makes the following rulings and recommendations as to sanctions to be imposed on SCDC:
• The undersigned ORDERS SCDC to pay the reasonable expenses associated with the following: (1) in Bartlett, Dkt. No. 59; and the June 5, 2019 hearing (Dkt. No. 64); and (2) in the Battle cases, Dkt. No. 97 and the hearings on May 7, 2019 (Dkt. No. 93) and June 5, 2019 (Dkt. No. 99). The undersigned RECOMMENDS that if Defendant fails to produce any of the above requested items to Plaintiffs by April 30, 2020, the Court should: (1) prohibit Defendants from later introducing these items as evidence at trial; and (2) inform the jury of SCDC's failure to provide this information. See Rule 37(c), Fed. R. Civ. P.
• The undersigned ORDERS Defendant SCDC to pay Plaintiffs’ reasonable expenses in making the motions to compel relating to the production of the Roth Report and preparing for the hearings related to those motions, including attorneys’ fees, pursuant to Rule 37(a)(5)(A). More specifically, Defendant SCDC must pay the reasonable expenses associated with the following: (1) in Bartlett, Dkt. No. 59; and the June 5, 2019 hearing (Dkt. No. 64); and (2) in the Battle cases, Dkt. No. 97 and the hearings on May 7, 2019 (Dkt. No. 93) and June 5, 2019 (Dkt. No. 99).
• The undersigned RECOMMENDS with respect to the Kough cases, Bartlett, and Wilson (17-3032) that: (1) SCDC cannot contest the contents of the Roth Report at trial because the documents underlying the report have not been preserved; and (2) at trial, the Court should allow Plaintiffs to present evidence and argument to the jury regarding the loss of this information.
• With respect to the payment of any fees ordered herein, the undersigned will only award fees and expenses to Plaintiffs that are reasonable. Accordingly, with respect to the payment of any fees and expenses ordered herein, the undersigned ORDERS Plaintiffs to submit evidence regarding the time and money they spent specific to the cases and the docket numbers specified in this conclusion section. However, as cautioned above, many of the briefs and motions at issue are identical among the cases. Plaintiffs should not duplicate their efforts when calculating their reasonable fees and expenses. Plaintiffs must submit their evidence to the Court by April 20, 2020. The Court will then issue any appropriate and necessary instructions.
IT IS SO ORDERED AND SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’ ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
*18 Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, ClerkUnited States District CourtPost Office Box 835Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
Footnotes
Plaintiffs filed an identical Sanctions Motion in each of these cases. For ease of reference, all references to the Sanctions Motion use the docket entry numbers in Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB. In addition, unless otherwise specified, all references to Defendants’ response and Plaintiffs’ reply to the Sanctions Motion use the docket entry numbers in Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB. Where a specific case is otherwise referenced, the undersigned uses docket entry numbers specific to that case.
This four-factor test “does not control the determination of whether to exclude evidence under Rule 37(c)(1).” S. States Rack and Fixture, Inc., 318 F.3d at 597–98.
Plaintiffs also briefly allege that SCDC committed “obstructionist behavior in scheduling depositions in their cases,” and also “disrupt[ed] attorney visits” with inmate clients on two occasions. (Dkt. No. 129 at 30–31.) However, Plaintiffs provide no compelling explanation of how they were prejudiced by this alleged conduct. It appears all the noticed depositions have been conducted. To the extent Plaintiffs’ allegations here focus on the deposition of Hubert Moses in Wilson, 18-50, SCDC's conduct with respect to this deposition will be addressed in a separate Order specific to Wilson, 18-50. See Plaintiff's Second Amended Motion for Sanctions in Wilson v. Eagleton et al 1:18-cv-00050-RMG-MGB, Dkt. No. 205. This separate Order, specific to Wilson, 18-50, will also address Plaintiffs’ brief allegation that “counsel for SCDC” acted inappropriately by filing an answer on behalf of its “non-client,” Cory Lucas, in Wilson, 18-50. (Dkt. No. 129 at 13–14.)
Commentary: SC Prisons Need Far More Guards—and Far More Transparency, Post and Courier, https://www.postandcourier.com/opinion/commentary/commentary-sc-prisons-need-far-more-guards-and-far-more/article_0d444f4a-1394-11e9-b42f-e7fccc2aadc4.html (published Jan. 12, 2019); Corrupt guards run amok at understaffed, underfunded SC prisons, The State, https://www.thestate.com/news/special-reports/article226466295.html (published April 11, 2019).
Here, the undersigned recognizes that Plaintiffs filed identical motions in the cases severed from Battle. Plaintiffs should not duplicate their efforts when calculating their reasonable expenses. The undersigned further notes here that these cases are past the summary judgment stage. The recommendations herein are for pretrial purposes only.
Here, the undersigned gives recommendations rather than orders because the recommended sanctions would affect the pretrial proceedings, which are controlled by the District Judge.
Indeed, it appears that even today, Plaintiffs would still not know of the existence of the Roth Report if not for aforementioned news articles.
Plaintiffs filed this identical brief in numerous cases. Plaintiffs should not duplicate their efforts when calculating their reasonable expenses related to filing this motion.
Specifically, Plaintiffs allege that: (1) SCDC interfered in scheduling the deposition of former SCDC correctional officer, Hubert Moses; and (2) “counsel for SCDC” filed of an answer on behalf of its “non-client,” Cory Lucas. (Dkt. No. 129 at 13–14, 30.)