Defendants have failed to comply with the court's October Order (ECF 24) and have failed to respond to the Order to Show Cause (ECF 29). As a sanction for failure to comply with a court order, Rule 37 provides that a court may “issue further just orders” including one or more of the following sanctions:
(i) 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;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). In addition, Rule 37 permits the court to award expenses and attorney's fees if a discovery motion is granted. Fed. R. Civ. P. 37(a)(5). The discretion to choose a sanction is limited in that the chosen sanction must be both ‘just and related to the particular ‘claim’ which was at issue in the order to provide discovery.’ ” Ehrenhaus v. Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992) (quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). Moreover, before choosing dismissal, the court should consider prejudice, interference with the judicial process and culpability of the litigant. Id. at 921.
*2 Plaintiffs request the court find Defendants in contempt and impose the following sanctions: (i) an award of costs and attorneys’ fees to Plaintiffs for this Motion and its two previously filed motions to compel; (ii) dismissal of the Defendants’ Counterclaims with prejudice; (iii) striking Defendants’ answers to Plaintiffs’ interrogatories; and (iv) prohibiting Defendants from presenting any evidence on summary judgment or at trial that should have been provided in response to Plaintiffs’ interrogatories (collectively Requested Sanctions) (ECF 27).
The court finds Plaintiffs have been prejudiced by Defendants’ failure to provide the interrogatory responses consistent with the obligations under the Federal Rules. The interrogatories, first served in March of 2020, sought information on issues at the heart of this matter (ECF 27 at 3). While Defendants submitted an initial “response” of objections, the record supports that Defendants were not diligent or forthcoming with the requested information for a sustained period—namely, Plaintiffs have been trying to secure the information since March of 2020 and to date do not have the information (ECF 27 at 2-5). Defendants’ response and compliance with the court's October Order is a necessary part of litigation. Defendants’ behavior has therefore interfered with the judicial process. Plaintiffs filed their initial discovery motion back in June of 2020 (ECF 18) and while the court found the parties had failed to sufficiently meet and confer, discussions did take place. Plaintiffs were thereafter diligent in following the court's order (ECF 21), met and conferred and came to an agreement on what would be produced well after the initial deadlines (ECF 24). When Defendants failed for a second time to produce the requested discovery by the extended deadline, Plaintiffs were forced to file their Renewed Motion, further prolonging what should have been produced as mandated by the discovery rules (ECF 24). Defendants have not responded to the Motion or the Order to Show Cause and the court therefore has no argument to dispute the culpability of the Defendants.
Based on Defendants’ contempt in failing to respond to the court's October Order and failure to supplement their responses to Plaintiffs’ Interrogatories (ECF 27-1), the court finds sanctions are justified. In determining which sanctions would be just and related to the particular discovery at issue, the court finds dismissal of Defendants’ counterclaims is not warranted at this time. See Meade v Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988) (noting dismissal is usually appropriate only where a lesser sanction would not serve the interest of justice). However, the court will award Plaintiffs’ costs and attorneys’ fees incurred in filing their Renewed Motion and the present Motion (ECF 22 and 27). Because Plaintiffs failed to meet and confer on the initial Motion to Compel Responses to Interrogatories (ECF 18), the court does not find fees justified on that motion. The court will also strike Defendants’ answers to Plaintiffs’ Interrogatories and prohibit Defendants from presenting any evidence on summary judgment or at trial that should have been provided in response to Plaintiffs’ Interrogatories.
