Martin v. SGT, Inc.
Martin v. SGT, Inc.
2021 WL 1338127 (D. Utah 2021)
January 29, 2021
Pead, Dustin B., United States Magistrate Judge
Summary
The court found that Plaintiff Christine Martin had failed to comply with an August Order to provide a complete production of ESI. The court ordered Ms. Martin to coordinate with the Defendant to engage an independent forensic ESI Vendor to collect, process, and catalog all ESI, including physical devices, e-mail accounts, and cloud storage. This will allow the Defendant to complete discovery and craft an informed defense.
Additional Decisions
CHRISTINE MARTIN, Plaintiff,
v.
SGT, INC. f/k/a TGT, INC., a Wyoming corporation, Defendant
v.
SGT, INC. f/k/a TGT, INC., a Wyoming corporation, Defendant
Case No. 2:19-cv-00289-RJS-DBP
United States District Court, D. Utah, Central Division
Signed January 29, 2021
Counsel
Paul R. Smith, Timothy B. Smith, Elena Todorova Vetter, Jones Waldo Holbrook & McDonough, Salt Lake City, UT, for Plaintiff.Benjamin Nichols Simler, Holland & Hart LLP, Denver, CO, Stephen M. Sansom, Holland & Hart LLP, SALT LAKE CITY, UT, Timothy P. Getzoff, Holland & Hart LLP, Boulder, CO, for Defendant.
Pead, Dustin B., United States Magistrate Judge
ORDER GRANTING SGT, INC.’S MOTION FOR SANCTIONS
*1 This case is before Magistrate Judge Dustin B. Pead pursuant to a 28 U.S.C. § 636(b)(1)(A) referral from District Court Judge Robert J. Shelby. (ECF No. 45.) Currently pending is Defendant SGT, Inc.’s (“Defendant” or “SGT”) Motion for Sanctions (“Motion”) (ECF No. 73.) Now, having considered the parties’ arguments and relevant legal authorities, the Court GRANTS Defendant's Motion as follows.
BACKGROUND
1. SGT served Plaintiff Christine Martin (“Plaintiff” or “Ms. Martin”) with Requests for Production (the “Requests”) on July 13, 2020. (ECF No. 69-7.)
3. On August 21, 2020, Ms. Martin served her written responses and produced a single, 916-page PDF file consisting of disparate, disorganized documents that failed to respond to the majority of Requests. (ECF No. 73-1 at ¶ 3; Declaration of Benjamin Simler; ECF No. 73-3, Exhibit B.)
4. On August 31, 2020, this Court determined that Ms. Martin failed to timely respond to the Requests and “failed to show excusable neglect” for that failure. (ECF No. 71 at 4.) As a result, the Court entered an Order finding that “Ms. Martin's objections to SGT's ... Requests for Production are waived,” and required her “to provide ... a complete production no later than September 4, 2020.” (“August Order”). (Id.)
5. On September 1, 2020, SGT informed Ms. Martin about deficiencies in her initial production and requested her compliance with the August Order. In response, Ms. Martin took the position that she had already complied with the Court's August Order. (ECF No. 73-1 at ¶ 4; ECF No. 73-4, Exhibit C.)
6. At the end of September, SGT again expressed its concern with Ms. Martin's production. Specifically, SGT asserted Plaintiff had not produced any ESI, or any of the documents for which she had already been found to have waived privileges or work product protections. Further, Ms. Martin still had not produced documents responsive to many of SGT's Requests. (ECF No. 73-1 at ¶¶ 4-5.)
7. The parties held a telephone conference on October 1, 2020. (ECF No. 73-1 at ¶ 5; ECF No. 74-1 at ¶¶ 7-8, Declaration of Timothy B. Smith.) During the conference, Plaintiff again asserted that she had produced all documents responsive to the Requests (ECF No. 73-1 at ¶ 5) and indicated that although she “was not a large company with a sophisticated document retention policy,” she would “look for and provide any additional responsive documents” as well as a log of any materials withheld on the basis of a privilege or work product. (ECF No. 73-1 at ¶ 5; ECF No. 74-1 at ¶¶ 7-9.)
8. On October 9, 2020, Ms. Martin served revised written responses to the Requests that omitted the objections stated in her earlier responses. (ECF No. 73-1 at ¶ 7; ECF No. 73-6, Exhibit E.)
9. On October 12, 2020, Ms. Martin produced approximately 2,700 new documents. (ECF No. 73-1 at ¶ 8.) The documents were produced in a format that was not compliant with the Rules of Civil Procedure or with the Requests’ specifications. (Id.) The ESI was provided in a “scattershot fashion” that obscured the documents’ original file names, organization, and other metadata and concealed their significance as well as the Requests to which the documents were responsive. (Id.; ECF No. 69-7.)
*2 10. Plaintiff's new production excluded documents SGT had requested. (ECF No. 73-1 at ¶ 9; ECF No. 73-7, Exhibit F.)
11. After SGT reviewed this production, it again contacted Ms. Martin in an attempt to resolve these matters without court involvement. On November 17, 2020, the parties conferred by phone. Ms. Martin stated that a further supplemental production would be made and promised to log all documents withheld based on privilege. (ECF No. 73-1 at ¶ 10.)
12. On November 18, 2020, Martin produced 18 additional ESI files, which did not conform to the August Order or to SGT's Request specifications. (ECF No. 73-1 at ¶ 11.)
13. To date, Ms. Martin still has not produced documents responsive to the Requests, including e-mail communications with SGT, financial records, and agreements or communications with third parties. (ECF No. 73-1 at ¶ 12; ECF No. 75-4.)
ARGUMENTS
Defendant asserts Ms. Martin's failure to comply with the August Order and to complete her discovery obligations has prejudiced SGT and prevented it from obtaining evidence critical to its defense. (ECF No. 73; ECF No. 75.) As a result, SGT suggests that dismissal of Ms. Martin's case or the entry default judgment is appropriate. In the alternative, SGT asks the court to enter the following sanctions: (1) an adverse jury instruction; (2) a requirement that Ms. Martin engage an outside forensic ESI vendor to collect and produce evidence to SGT; (3) an order extending scheduling deadlines only for SGT; (4) an order that documents for which privileges were already waived be produced; (5) an order that Ms. Martin be prohibited from using evidence she failed to produce; and (6) an order that Ms. Martin reimburse SGT for the expenses it incurred as a result of her failures, including but not limited to all attorneys’ fees and other expenses incurred since August 31, 2020.
In response, Ms. Martin contends that SGT's Motion should be dismissed in its entirety based on Defendant's failure to comply with federal meet and confer requirements and the local short form discovery rule. (ECF No. 74); see Fed. R. Civ. P. 37; DUCivR 37-1(a)(3). As to the substance of the claims, Ms. Martin contends that she complied with the August Order and therefore sanctions are not warranted.
LEGAL AUTHORITIES
A “court may exercise its inherent powers to sanction bad-faith conduct that abuses the judicial process.” Xyngular v. Schenkel, 890 F.3d 868, 873 (10th Cir. 2018) (citation omitted). If a party fails to obey a discovery order, the court “may issue further just orders.” See Fed. R. Civ. P. 37(b)(2)(A). Such orders “may include ... dismissing the action or proceeding in whole or in part.” Id. at 37(b)(2)(A)(v). Dismissal with prejudice “is proper only when these factors outweigh the judicial system's strong predisposition to decide cases on the merits.” Cobb v. Benzon, 2020 U.S. Dist. LEXIS 105168 *3 (D. Utah Jun. 15, 2020) (citing DeBardeleben v. Quinlan, 937 F.2d 502, 504 (10th Cir. 1991)).
ANALYSIS
A large portion of Ms. Martin's opposition is directed at Defendant's alleged violation of (1) federal meet and confer requirements; and (2) the local short form discovery rule. See Fed. R. Civ. P. 37; DUCivR 37-1(a)(3). Neither procedural challenge is compelling and both appear as half-hearted attempts to obfuscate from the substance of the underlying Motion.
*3 Federal Rule 37(a) requires a party to meet and confer with opposing counsel before filing a motion to compel discovery. Fed. R. Civ. P. 37(a). SGT, however, did not move to compel, it moved for sanctions based on Ms. Martin's failure to provide productions ordered by the court. See Talbot v. Foreclosure Connection, Inc., 2020 U.S. Dist. LEXIS 135815 *26 (D. Utah, July 29, 2020) (finding meet and confer requirements of Rule 37(a) inapplicable to motion for sanctions). Nonetheless, SGT did meet and confer with Plaintiff on September 1, 2020, October 1, 2020 and November 17, 2020, and, at some point, Ms. Martin's burden to respond to outstanding discovery overshadows the requirement that Defendant continue to engage Plaintiff in a meet and confer. (ECF No. 73-1 at ¶¶ 4, 5, 10; ECF No. 75-4.) Further, given the gravity of a motion seeking dismissal or default, the short-form discovery procedure, limiting argument to a scant five hundred words, would not be appropriate. See DUCivR 37-1(a)(6). And even assuming SGT had filed a short-form Motion, a request for additional briefing would have immediately ensued. See Id. (a)(C) (“the court may request further briefing and set a briefing schedule.”).
Having dispensed with Ms. Martin's procedural arguments, the Court next considers the two main grounds for SGT's Motion: (1) Ms. Martin's failure to comply with the August Order; and (2) Plaintiff's continuing failure to produce documents responsive to the Requests. As set forth herein, SGT establishes both grounds.
1. Ms. Martin Failed to Comply with the Court's August Order
Despite the Court's August Order requiring “a complete production no later than September 4, 2020[,]” SGT has not received complete productions responsive to its Requests. (ECF No. 71 at 4.) Ms. Martin contends “there is no dispute” that she has “produced discovery responses and documents.” (ECF No. 74 at 7 and ftn. 5.) Yet, her claim keenly neglects to address the fulsomeness of the productions.
The parties agree that on August 21, 2020 Ms. Martin produced a “single, 916-page PDF file” (ECF No. 73-1 at ¶ 3), on October 12, 2020 she produced “approximately 2,700 new documents” (Id. at ¶ 8) and on November 18, 2020 she produced “18 PDF files.” (Id. at ¶ 11.) Setting aside issues of format, nearly five months after a “complete production” was ordered, discovery remains outstanding. Accordingly, Ms. Martin has failed to comply with the Court's August Order.
2. Ms. Martin Has Not Completed Productions In An Acceptable Format
As the Plaintiff in this lawsuit, Ms. Martin has certain discovery obligations. Ms. Martin, however, failed to fulfill those obligations and discovery continues to remain outstanding for Requests 1, 2, 3, 4, 5, 7, 8, 9 and 10. (ECF No. 69-7; ECF No. 73 at 5.) In addition, those documents that have been produced are disparate, disorganized and do not fully allow Defendant, with reasonable effort, to ascertain those documents responsive to its Requests. For example, on October 12, 2020, Plaintiff produced 2,700 “new” documents. (ECF No. 73-1 at ¶ 8.) Those documents, however, were neither produced as they were maintained in the ordinary course, nor correlated with categories in the request. (Id.); see Fed. R. Civ. P. 35(E)(i) (party must produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”).
In turn, emails and thousands of other files produced by Plaintiff were “dumped together into a single folder, rather than with the original directory names or structures,” and hundreds of files were blank or included random system files and documents unrelated to this action. (Id.); see also White v. Wiseman, 2020 U.S. Dist. LEXIS 119121 *5 (D. Utah, July 6, 2020) (recognizing “when the requested documents are voluminous, the responding party has an obligation to organize the documents in such a manner that the requesting party may determine, with reasonable effort, which documents are responsive to its requests.”); see also Armor Screen Corp. v. Storm Catcher, Inc., 2009 U.S. Dist. LEXIS 63538 *7 (S.D. Fla. Feb. 5, 2009) (“a party exercising Rule 34’s option to produce records as they are kept in the usual course of business should organize the documents in such a manner that the requesting party may obtain, with reasonable effort, the document responsive to their requests.”). Accordingly, to date, Ms. Martin has not produced all documents responsive to the Requests in an appropriate format.
3. Ehrenhaus Factors
*4 Pursuant to Rule 37, a court may dismiss an action “if a party ... fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2)(C). Here, Ms. Martin failed to comply with the Court's August Order and has not provided a complete production. As a result, SGT seeks dismissal of the action or the entry of default judgment as a sanction against Plaintiff.
In Ehrenhaus v. Reynolds, the Tenth Circuit articulated several factors a court must consider before dismissing an action with prejudice. 965 F.2d 916, 920-21 (10th Cir. 1992). Those factors include: “(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. The Ehrenhaus factors are not “a rigid test; rather, they represent criteria for the district court to consider [before] imposing dismissal as a sanction.” Id. at 921; see also Lee v. Max Int'l. LLC, 638 F.3d 1318, 1323 (10th Cir. 2011) (“The Ehrenhaus factors are simply a non-exclusive list of sometimes-helpful ‘criteria’ or guide posts the district court may wish to ‘consider’ in the exercise of what must always be a discretionary function.”).
Dismissal is considered a “severe sanction” that is only appropriate “where a lesser sanction would not serve the interest of justice.” Meade v. Grubbs, 841 F.2d 1512, 1520 (10th 1988) (citing Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923, 925 (11th Cir. 1986)).
Factors 1& 2: Prejudice & Interference With Judicial Process
Applying the first two Ehrenhaus factors, the court finds that Ms. Martin's failure to fully comply with the August Order, along with her continuing failure to produce requested documents, has prejudiced Defendant through increased costs and delays. Indeed, without full production, SGT cannot complete discovery, determine what documents remain withheld or craft an informed defense. See Faircloth v. Hickenlooper, 758 F. Appx. 659, 662 (10th Cir. Dec. 26, 2018) (unpublished) (quoting Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993) (recognizing “prejudice from ‘delay and mounting attorney's fees’ ”)).
In turn, Plaintiff's disregard of the August Order has interfered with the judicial process by evidencing a disregard for the effective administration of justice. See Jones, 996 F.2d at 265 (ignoring court orders “hinder[s] the court's management of its docket and its efforts to avoid unnecessary burdens on the court and the opposing party.”); see also Killen v. Reed & Carnick, 1997 U.S. App. LEXIS 430 *10 (10th Cir. Jan. 9, 1997) (unpublished) (“Plaintiff's willful failure to comply with [court] orders flouted the court's authority and interfered with the judicial process.”) (internal quotation marks & citation omitted.)).
Factor 3: Culpability
Ms. Martin is culpable for her failure to comply. In her defense, Plaintiff asserts that she is not “a large company with a sophisticated document retention policy.” (ECF No. 74-1 at ¶ 8.) Yet, any generosity that inures to Ms. Martin as an individual litigant does not absolve her from compliance with court orders or the timely production of discovery.
Factor 4: Advance Warning
The court has not had an opportunity to warn Ms. Martin that dismissal is a possible consequence of her failure to comply.
Factor 5: Efficacy of Lesser Sanctions
*5 The “sanction of dismissal is not ordinarily warranted if lesser sanctions would be effective.” Ehrenhaus, 965 F.2d at 922. Here, given that Ms. Martin has not been previously warned of dismissal as a possible consequence of her non-compliance, lesser sanctions may be effective to rectify the prejudice and deter future misconduct.
4. Application
Applying the Ehrenhaus factors to the matter at hand, the Court concludes that, at this juncture, neither dismissal of Ms. Martin's case, nor the entry of default judgment, are appropriate sanctions. Rather, the Court finds that lesser sanctions may be effective, will serve the interests of justice and give substance to the court's preference for resolution on the merits. In its discretion, the court may issue lesser sanctions that are “ ‘just’ and ‘related to the particular ‘claim’ which was at issue in the order to provide discovery.’ ” Erenhaus, 965 F.2d at 920-21 (quoting Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982); see also Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii) (the court may “issue further just orders”). The Court, however, admonishes Plaintiff that future violations of court orders and rules could result in the extreme sanction of dismissal or default.
Because Ms. Martin's continuing failure to comply with the August Order and provide complete responses to SGT's production requests has undermined SGT's ability to pursue and develop its defenses and imposed unnecessary costs on the Defendant, the court ORDERS the following sanctions.
ORDER
For the reasons stated above, it is HEREBY ORDERED that pursuant to Federal Rule 37, Plaintiff is ORDERED to:
1. Coordinate with SGT regarding Ms. Martin's engagement of an independent forensic ESI Vendor, to be paid for by Plaintiff. Plaintiff shall provide the vendor access to all ESI repositories to which she has access (including all physical devices, e-mail accounts, and cloud storage), and have the vendor appropriately collect, process, and catalog all such ESI. The vendor shall then make that material available to SGT for inspection and copying;
2. No later than February 16, 2021, produce to SGT all documents that were in existence by October 9, 2020, that Plaintiff has withheld on the basis of a privilege or work product objection.
3. Reimburse SGT all its reasonable expenses related to her prior document productions’ improper formats and to the efforts SGT has made to secure her compliance with this Court's Orders, to include the expenses associated with this Motion.
4. No later than February 8, 2021 the parties shall meet and confer and submit a proposed, stipulated amended scheduling order for review by the court.
5. After SGT receives the ESI described above and any remaining outstanding productions, file a certification of “complete production”.