Boykins v. Trinity, Inc.
Boykins v. Trinity, Inc.
2020 WL 13614807 (E.D. Mich. 2020)
October 8, 2020
Stafford, Elizabeth A., United States Magistrate Judge
Summary
The Court found that defendants had failed to comply with the Federal Rules of Civil Procedure, including the requirement to produce ESI. The Court ordered defendants to provide complete answers and responses to plaintiff's discovery requests, including any ESI, by October 6, 2020 and warned that a willful bad faith in thwarting discovery may result in severe sanctions, including a default judgment.
Additional Decisions
Carol BOYKINS, as Personal Representative for the Estate of Carl Johnson, Jr., deceased, Plaintiff,
v.
TRINITY, INC., et al., Defendants
v.
TRINITY, INC., et al., Defendants
Civil Action No.: 18-13931
United States District Court, E.D. Michigan, Southern Division
Signed October 08, 2020
Counsel
Joseph J. Ceglarek, II, The Sam Bernstein Law Firm, PLLC, Farmington Hills, MI, for Plaintiff.John W. Sechler, Wilson Elser Moskowitz Edelman & Dicker, LLP, Livonia, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, Juliana B. Sabatini Plastiras, Mike Morse Law Firm, Southfield, MI, Melissa Murphy-Petros, Wilson Elser Moskowitz Edelman & Dicker, LLP, Chicago, IL, for Defendant Trinity Inc.
John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, Cara M. Swindlehurst, Gordon Rees Scully Mansukhani, Detroit, MI, Juliana B. Sabatini Plastiras, Mike Morse Law Firm, Southfield, MI, Melissa Murphy-Petros, Wilson Elser Moskowitz Edelman & Dicker, LLP, Chicago, IL, for Defendants Detroit Public Schools Community District, Shirley MacAlpine.
John T. Eads, III, Gordon Rees Scully Mansukhani, Bloomfield Hills, MI, for Defendants Jane Doe, Jane Doe, II.
Jonathan M. Jaffa, Ronald S. Lederman, Todd A. McConaghy, Sullivan, Ward, Patton, Gleeson & Felty, P.C., Southfield, MI, for Defendant Mary Burns, RN.
Richard A. Joslin, Jr., Collins, Einhorn, Southfield, MI, for Defendant Melinda Lawery, RN.
Stafford, Elizabeth A., United States Magistrate Judge
ORDER DENYING MOTION FOR PROTECTIVE ORDER [ECF NO. 84]
*1 Defendants move for a protective order related to documents that the Court has already ordered it to produce. [ECF No. 82; ECF No. 84].[1] In its order granting plaintiff's second motion to strike objections and enter sanctions for discovery violations, the Court found that “defendants failed to apprise themselves of the requirements of the Federal Rules of Civil Procedure, did not respond to discovery requests responsibly, and have caused needless delay.” [ECF No. 82, PageID.2040]. Defendants had made “boilerplate and evasive objections” and “persistently failed to state whether any responsive material was withheld because of their objections.” [Id., PageID.2041]. They made privilege objections but included no privilege log, in violation of Federal Rule of Civil Procedure 26(b)(5)(A)(ii). [Id.]. The Court concluded that “defendants’ disregard for the requirements of the Federal Rules of Civil Procedure has been egregious and inexcusable.” [Id., PageID.2045].
Defendants were thus ordered to “provide complete answers and responses to plaintiff's discovery requests” by October 6, 2020. [Id., PageID.2046]. They were warned “that failure to comply with this order may result in sanctions under Rule 37(b)(2) or the Court's inherent authority, up to and including a default judgment against them.” [Id., PageID.2046]. And the Court emphasized, “ ‘When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.’ E.D. Mich. LR 72.2.” [Id.]. Despite the unequivocal language of this Court's order that defendants produce the requested documents by October 6, and the warnings about the consequences of defendants’ failure to comply, they now seek to condition their compliance on plaintiff's agreement to a protective order. [ECF No. 84].
The proposed protective order would permit defendants to designate documents for attorneys’ eyes only, but defendants’ brief altogether fails to articulate a clearly defined and serious injury that would warrant a protective order, much less one that justifies the heightened protection of an attorneys-eyes-only designation. See Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001); Flagg v. City of Detroit, No. 05-74253, 2010 WL 3070104, at *3 (E.D. Mich. Aug. 4, 2010); Key Components, Inc. v. Edge Elecs., Inc., No. 3:07-CV-224, 2008 WL 4937560, at *4 (E.D. Tenn. Nov. 17, 2008). The proposed protective order also provides for presumptive sealing of documents that are filed with a motion, which is not allowed. See E.D. Mich. LR 5.3; Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016); Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App'x 202, 207 (6th Cir. 2016); Konica Minolta Bus. Sols., U.S.A., Inc. v. Lowery Corp., No. CV 15-11254, 2018 WL 8899815 (E.D. Mich. Aug. 8, 2018).
*2 Most importantly, defendants’ motion for protective order is much too late. Although Rule 26(c)(1) has no explicit deadline, most courts require motions for protective orders to be filed before discovery responses are due. SMA Portfolio Owner, LLC v. Corporex Realty & Inv., LLC, No. CV 11-168-DLB-JGW, 2014 WL 12650589, at *2 (E.D. Ky. Apr. 18, 2014); William Beaumont Hosp. v. Medtronic, Inc., No. 09-CV-11941, 2010 WL 2534207, at *4 (E.D. Mich. June 18, 2010). At the very latest, a motion for protective order must be made by the deadline for responding to a motion to compel.
There are strong reasons favoring simultaneously bringing a motion for protective order and a motion to compel, or bringing a motion for a protective order before any other discovery motions. Litigants, or non-parties, must realize that a motion to compel will likely resolve discovery issues with finality. If a court were to shape discovery, then face a later motion for protective order on the same subject matter, it would force the court to revisit issues already ruled upon. This legally and procedurally awkward position is what Respondent's tardy motion for protective order has now created.
Convertino v. U.S. Dep't of Justice, 260 F.R.D. 678, 681 (E.D. Mich. 2008).
Plaintiff first moved to strike defendants’ objections in October 2019. [ECF No. 25]. In January 2020, the Honorable Arthur J. Tarnow ordered defendants “to provide the discoverable documentation that Plaintiff requests within 28 days.” [ECF No. 37, PageID.1102]. Plaintiff's July 2020 second motion to strike defendants’ objections and to compel responses to discovery referred to the same discovery requests that Judge Tarnow addressed in January 2020. [ECF No. 50]. There can be no question that defendants’ new effort to seek a protective order is woefully late.
And defendants’ apparent effort to further delay producing the requested documents, beyond the October 6th deadline imposed in this Court's prior order, is unacceptable. They are warned that a defendant's “willful bad faith in thwarting discovery” that prejudices the plaintiff and wastes the court's time may result in severe sanctions, including a default judgment. Grange Mut. Cas. Co. v. Mack, 270 F. App'x 372, 376 (6th Cir. 2008). “Our civil legal system hinges on voluntary discovery. Discovery abusers must be sanctioned, because ‘[w]ithout adequate sanctions, the procedures for discovery would be ineffectual.’ ” Id. at 378 (quoting 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2281 (2d ed. 1994)). See also Tapestry, Inc. v. Al-Reem, Inc., No. 2:18-CV-1724, 2020 WL 5505297, at *3 (S.D. Ohio Sept. 11, 2020) (“Defendants have acted willfully and in bad faith despite repeated warnings of the potential entry of default judgment, and Plaintiffs have suffered clear prejudice because of Defendants’ actions. Because lesser sanctions would be futile, the entry of default judgment is appropriate here.”).
For these reasons, defendants’ motion for protective order [ECF No. 84] is DENIED and the order for defendants to produce its documents by October 6, 2020 remains in full force and effect.
Footnotes
The Honorable Arthur J. Tarnow referred the motion to the undersigned for hearing and determination under 28 U.S.C. § 636(b)(1)(A). [ECF No. 87].