*1 This matter is before the court on a motion by plaintiff People for the Ethical Treatment of Animals, Inc. (“PETA”) seeking sanctions against the defendants and an order requiring them to show cause why they should not be held in contempt. The plaintiff's motion is based on the defendants’ failures to participate in discovery and to comply with this court's orders regarding discovery in advance of the preliminary injunction hearing that is set for January 24, 2018.[1]

PETA filed this lawsuit on September 29, 2017, and the defendants knew it was coming. PETA had, as required by certain provisions of the Endangered Species Act, provided notice on July 27, 2017, of its intent to file suit. See Complaint, Dkt. 1, ¶ 7. The defendants also knew that PETA would seek extensive discovery from them; PETA had previously filed a miscellaneous case seeking discovery before this lawsuit was commenced. See Case No. 4:17-mc-00003-RLY-DML (the case in which the records preservation order was entered with the consent of the parties).

When it filed this lawsuit, PETA also moved for a temporary restraining order that enjoined the defendants from declawing Big Cats. The court held a telephone conference with the parties on that motion, granted the TRO on October 4, 2017, and set an evidentiary hearing on the motion for October 19, 2017. After that hearing and additional briefing by the defendants, the court set a preliminary injunction hearing for January 24, 2018, and extended the effectiveness of its October 4 restraining order until the conclusion of that hearing.

PETA then commenced discovery to aid in the prosecution of its claims generally and to prepare its case for the January 24 preliminary injunction hearing. The defendants have engaged in a pattern of obstreperous behavior to thwart PETA's discovery efforts, have failed their obligations under the discovery rules, and have defied this court's discovery orders. The court has detailed the defendants’ discovery abuses in a prior order, and repeats that history here.

On November 3, 2017, PETA served interrogatories and document requests on the defendants, responses to which were due within 30 days of service. The defendants did not timely serve responses. They also had not cooperated to schedule their depositions, and had objected to motions to enforce inspections requests served by the plaintiff.

*2 On December 8, 2017, the court ordered the defendants to do the following by December 12, 2017: (a) serve responses to the interrogatories and document requests, (b) file a motion for protective order to the extent they made any objections to the discovery other than objections based on the attorney-client privilege or work product doctrine, and (c) serve a privilege log. The court also set a hearing to be conducted by telephone on December 15, 2017. Instead of complying with the court's December 8, 2017 order regarding their discovery obligations, the defendants filed a motion for protective order on December 12, 2017, seeking a stay of all discovery.

The court denied that motion during the December 15, 2017 hearing, and provided the defendants with a new deadline by which they must answer the plaintiff's interrogatories and document requests (as those requests had been limited by the plaintiff).

The defendants were required by December 22, 2017, to serve their responses, file a motion for protective order to the extent any objections were made other than objections based on attorney-client privilege or the work product doctrine, and serve a privilege log. The defendants did not serve a privilege log. The defendants did not file a motion for protective order. And the responses to the interrogatories and document requests, including the range of produced documents, obviously depended on objections for which no motion for protective order was filed. For example, the defendants did not produce any electronically stored information, and it is inconceivable that no ESI exists responsive to the requests. The defendants also did not identify the nature and extent of responsive documents they obviously withheld from production, choosing instead to limit unilaterally the scope of the requests by choosing what they deemed sufficiently responsive information. The discovery rules, and the court's December 15 order, required the defendants to identify clearly any categories of documents or information within the plaintiff's requests they were refusing to produce or answer because of objections. They did not do so, and because of their failure to move for a protective order, the court deemed objections to have been waived.

The court granted PETA's renewed motion to compel as to its interrogatories and document requests. The defendants’ thumbing of the nose at the court's order requiring discovery already had interfered with the plaintiff's preparation for the preliminary injunction hearing, and PETA was entitled to conduct that discovery in advance of the hearing. The court set a deadline for the defendants to conduct proper searches, produce additional documents, and supplement their interrogatory answers (and the court ruled that the defendants’ objections were overruled because they had not filed a motion for protective order as the court had required). That deadline was January 10, 2018. The court's order warned the defendants that any further defiance of their discovery obligations and this court's orders may subject them to contempt and other sanctions. Despite the warning, the defendants ignored the court's January 10, 2018 order, and did nothing that the court had required them to do.

They attempt to excuse their behavior now, in response to the motion for sanctions, by asserting that PETA's discovery requests were “onerous and overwhelming in the breadth and volume of what they are seeking.” The time for making that argument has passed. And the argument in any event is largely unsupported and unpersuasive. The court's orders were clear that any objections (except those based on privilege or work product) made by the defendants to PETA's interrogatories and document requests needed to be supported by a motion for protective order. The court imposed that procedure because the defendants had not bothered to even timely respond to PETA's document requests and interrogatories despite the fact this case was set for a January preliminary injunction hearing, and the parties obviously were entitled to take discovery and prepare for that hearing. By requiring the defendants to file a motion, discovery disputes could be expeditiously briefed and decided. But the defendants deliberately ignored their obligation to ask for a protective order to the extent they had objections to specific discovery requests. The court is not sympathetic to their attempt to stave off sanctions by making belated complaints—in defiance of a court order.

*3 Further, according to PETA (and not contradicted by the defendants),[2] the defendants also ignored notices of deposition PETA served to take the depositions of Tim Stark and Melisa Stark before the preliminary injunction hearing. They refused to respond to or otherwise comply with those notices. See Dkt. 69, ¶ 4.

The record before the court demonstrates that there is no justification for the defendants’ failure to comply with their discovery obligations and the court's discovery orders. The court is also convinced that the defendants’ discovery failures are of a pattern of obstreperous conduct, the result of bad faith, and have no plausible innocent explanation. Sanctions are warranted.

The court's inherent power and Rule 37 supply it with broad authority to sanction parties who abuse the discovery process. A court's inherent power permits it to protect the integrity of the judicial system. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). Under Rule 37, the court has the power to sanction a party that violates a discovery order or who makes evasive or incomplete disclosures in response to documents requests or interrogatories. See Rule 37(a)(4) (treating evasive or incomplete disclosures as a failure to “disclose, answer, or respond,” which can be sanctioned under Rule 37(b)).

Sanctions serve two purposes: to penalize parties who do not follow the rules and to deter others tempted that abusive conduct has no consequences. Greviskes v Universities Research Ass'n, Inc., 417 F.3d 752, 758-59 (7th Cir. 2005); Philips Medical Sys. Int'l, B.V. v. Bruetman, 982 F.2d 211, 214 (7th Cir. 1992). Rule 37 sanctions are appropriate where a party displays willfulness, bad faith, or fault in violating his discovery obligations. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). Willfulness or bad faith may be inferred through a party's “pattern of contumacious conduct or dilatory tactics,” Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1383 (7th Cir. 1993), and fault considers whether a party's discovery conduct demonstrates objectively a lack of reasonableness. Marrocco, 966 F.2d at 224.

Whether exercising its inherent power or invoking Rule 37, the guiding principle is that a sanction must be proportional to the abusive conduct. Allen v. Chicago Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003) (sanction under court's inherent power “should be proportioned to the gravity of the offense”); Maynard v. Nygren, 372 F.3d 890, 893 (7th Cir. 2004) (for Rule 37 sanctions, the punishment should fit the crime). The court should consider “the egregiousness of the conduct in question in relation to all aspects of the judicial process.” Dotson v. Bravo, 321 F.3d 663, 667-68 (7th Cir. 2003) (internal quotation omitted).

*4 PETA seeks a range of sanctions against the defendants, including default in the case as a whole, “default” on the plaintiff's motion for preliminary injunction (which seeks injunctions against declawing and activities connected with “Tiger Baby Playtime”), attorneys’ fees to reimburse PETA for all its discovery efforts, and the issuance of an order requiring the defendants to appear and show cause why they should not be held in contempt.

Because of the imminence of the preliminary injunction hearing and because the court required expedited briefing from the defendants in response to the sanctions motion, the court finds it appropriate to limit its sanctions at this time to matters directly related to the conduct of the preliminary injunction hearing. Further sanctions requested by the plaintiff will remain under advisement.

The defendants’ failures to participate in discovery, including their defiance of the court's orders to provide and permit discovery and their failures to cooperate and comply with notices of depositions, have unfairly impeded the plaintiff's preparation for the preliminary injunction hearing and its ability to counter any evidence that the defendants may intend to present at the preliminary injunction hearing. The court ORDERS, as a sanction for this misconduct:

The court does not grant the plaintiff's request that the court grant its motion for preliminary injunction as a discovery sanction. The court prefers that the plaintiff determine the contents of an evidentiary record it wishes to make in support of its motion for preliminary injunction. The court acknowledges too that the plaintiff may choose to (but is not required to) present evidence by way of affidavit. The plaintiff must make its own decisions on the evidence it wants to present and its form.

The court also does not grant, at this time, the plaintiff's request for a default judgment in the case as a whole. The court takes under advisement the plaintiff's request for an award of all fees it has incurred in connection with discovery and its request that the defendants appear before the court and show cause why they should not be held in contempt. The court expects to revisit those issues (and the issue whether the defendants violated the preservation order in Case No. 4:17-mc-0003-RLY-DML), and may permit additional briefing on those issues, after the preliminary injunction hearing.

The plaintiff's motion for sanctions and for the issuance of a show cause order (Dkt. 61) is GRANTED IN PART, DENIED IN PART, and TAKEN UNDER ADVISEMENT IN PART. At this time, the following sanction is imposed:

The defendants are prohibited from introducing any evidence at the preliminary injunction hearing, whether by affidavit, live testimony, or documents, unless that evidence was produced in discovery in this case, subject to the following exception. To the extent PETA does not stipulate to the foundational elements for admission of such a document produced in discovery, the defendants can present evidence limited to establishing those foundational elements. To be clear, however, the defendants are otherwise prohibited from presenting testimony during the hearing because they refused to comply with the court's discovery orders and refused to cooperate to appear for their depositions.

*5 So ORDERED.

Distribution:

All ECF-registered counsel of record by email through the court's ECF system

PETA's motion is also based on the defendants’ alleged violation of a records preservation order that was entered in another case (Case No. 4-17-mc-0003-RLY-DML) with the consent of PETA and the defendants, a case which may be fairly characterized as precursor litigation to this one. The defendants contest that any violation occurred. (They filed their response to the sanctions motion in the miscellaneous case, and the court treats it as having been filed in this case as well. The clerk is directed to docket the response in this case.) The court does not attempt to resolve now whether or not the records preservation order was violated and, if so, whether a sanction should be imposed. That matter is taken under advisement.

Because of the impending preliminary injunction hearing, the court ordered the defendants to file their responses to PETA's motion for sanctions and PETA's related motion for summary ruling on motion for preliminary injunction by noon on January 19, 2018. The defendants electronically filed their combined response to those motions in Case No. 4-17-mc-0003, and the court deems the response to have been filed in this case. PETA's motion for summary ruling provides information about the defendants’ failure to attend depositions. The defendants did not address that matter in their combined response.