*1 Before the Court is Plaintiffs' motion for sanctions against the Government and its counsel. Plaintiffs complain that the Government failed to provide information and documents relating to the so-called “Giglio impairment” of Defendant Scott Jones. The Court finds that the Government objected to the scope of Plaintiffs' discovery requests and explicitly outlined the limited nature of the information it was providing. The Court further finds that Plaintiffs failed to seek an order compelling this discovery. As such, no sanction is warranted here.

Plaintiffs filed this action on August 24, 2022, seeking recovery for the criminal investigation and prosecution of Dr. Moris Laca, as well as his termination from the Ernest Childers Veteran's Center in Tulsa, Oklahoma. (ECF No. 2.) Plaintiffs named as defendants the United States of America ex rel. Department of Veterans Affairs (the “Government”) and Scott W. Jones, Special Agent for the Department of Veterans Affairs (“Agent Jones”). According to Plaintiffs, Agent Jones testified falsely before a federal grand jury, resulting in the indictment of Dr. Laca in United States v. Laca, 20-CR-86-JFH (N.D. Okla.). (Id. ¶¶ 19–20.) Plaintiffs now assert various claims under the Federal Tort Claims Act and 42 U.S.C. § 1983.

After months of discovery practice, on October 9, 2023, Plaintiffs filed a motion compelling the Government to respond to its written discovery. (ECF No. 43.) This motion addressed a large number of the interrogatories and requests for production issued to the Government, but it did not encompass Interrogatory No. 13 or Request for Production Nos. 29 and 30. (Id.) Plaintiffs have never moved to compel responses to these discovery requests.

The requests relate to a single issue—the Giglio impairment of Agent Jones.[1]

(ECF No. 113 at 5–6.[2]) The Government objected to all three requests on the grounds that they were “not reasonably limited in scope by office [or] agency ....” (Id. at 6.) The Government then provided, without waiving its objections, a limited response—“no Giglio impairment has been created by the United States Attorney's Office Northern District of Oklahoma.” (Id.)

*2 On November 16, 2023, the Court held a hearing on Plaintiffs' original motion to compel. At that hearing, the issue of Giglio material was raised, and counsel for the Government twice corrected any potential misunderstanding Plaintiffs' counsel may have had regarding the scope of the Government's discovery response—making clear that it was not saying there was “no Giglio material created,” but instead, “[t]here was no Giglio material created by the Northern District of Oklahoma.” (ECF No. 117 at 111:18–24.) Even the Court noticed the clarification, stating “I think I hear Ms. Parrilli providing a qualification to her statement that I suspect is relevant to the issue you are discussing.” (Id. at 112:5–7.)

Plaintiffs have now filed a motion for sanctions under Rule 37 and 28 U.S.C. § 1927. Plaintiffs note that the discovery produced by the Government includes “extensive documentation ... of a Giglio notice as to SA Jones”; that “the issuance of the Giglio notice was a huge issue in [Agent Jones'] termination hearing”; and that the “U.S. Attorney's office for the Northern District of Texas issued a Giglio notice.” (ECF No. 113 at 6–7.) Plaintiffs then argue that sanctions against the Government are appropriate for giving false, misleading, or incomplete discovery responses and that the Government's counsel (Rachel Parrilli) unreasonably and vexatiously multiplied proceedings. (Id. at 10–13; see also ECF No. 135 at 4–7.) As a sanction, Plaintiffs ask that (1) the Government be ordered to produce documents from the U.S. Attorney's Office in Texas relating to Agent Jones' Giglio notice;[3] (2) default judgment be entered against the Government as to liability; (3) the Government be prohibited from offering any witnesses or evidence challenging liability or damages; and (4) the Government be ordered to pay Plaintiffs' attorney fees in reviewing discovery to find references to the Giglio notice. (ECF No. 113 at 14, 21–22.)

Having reviewed the briefing and discovery at issue, the Court determines Plaintiffs are not entitled to sanctions under Rule 37, because there has been no order compelling the Government to provide the information it claims is missing and no other basis for sanctions is met. The Court further finds that the limited nature of the Government's response was clear and unequivocal. Moreover, there is no evidence that the Government's counsel multiplied any proceedings on this issue, much less unreasonably or vexatiously.

I. Rule 37

Rule 37 either mandates or allows various forms of discovery relief and sanctions, none of which are applicable in these circumstances. For example, under Rule 37(b)(2), a court may order sanctions if a party “fails to obey an order to provide or permit discovery ....” Fed. R. Civ. P. 37(b)(2)(A); see also Derma Pen, LLC v. 4EverYoung Ltd., 736 F. App'x 741, 745 (10th Cir. 2018) (unpublished) (Rule 37(b)(2) allows “a court to enter a default judgment when a party disobeys a court order”).[4] No such order has been issued for the Giglio materials.

Similarly, a party may be sanctioned if they fail to provide information in their initial disclosures or as part of a required supplementation. Fed. R. Civ. P. 37(c)(1). No such supplementation has been ordered regarding these discovery requests. See Fed. R. Civ. P. 26(e)(1)(B). The Court further does not find supplementation as to new information about the Northern District of Texas to have been required, when the Government was clear that its initial response was limited to Oklahoma. See Fed. R. Civ. P. 26(e)(1)(A).

*3 Finally, and most obviously, if a party feels that the discovery provided to them is deficient, that party can confer in good faith with the opposing party to try and obtain the information. If such good faith conference fails, the party may then file a motion to compel discovery under Rule 37(a). If the party prevails on that motion, it may then be entitled to its expenses. Fed. R. Civ. P. 37(a)(5)(A). No such conference, motion, and order has occurred as to the Giglio materials.

There is no basis for an award of sanctions under Rule 37.

II. 28 U.S.C. § 1927

Under § 1927, an attorney who “so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally” excess costs and expenses “incurred because of such conduct.” 28 U.S.C. § 1927. The power to award costs under this section is generally “strictly construed.’ ” Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir. 1985)).

Id. at 1511 (quoting In re TCI Ltd., 769 F.2d 441, 445 (7th Cir. 1985)). While bad faith is not required, “any conduct that, viewed objectively, manifests either intentional or reckless disregard of the attorney's duties to the court is sanctionable.” Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202 (10th Cir. 2008) (internal quotations omitted). Fees may “also be awarded when an attorney is cavalier or bent on misleading the court; intentionally acts without a plausible basis; or when the entire course of the proceedings was unwarranted.” Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1221 (10th Cir. 2006) (internal quotations and alterations omitted).

Plaintiffs offer no basis for sanctions under this statute. The United States, acting on behalf of the Department of Veterans Affairs, objected to the discovery requests as not “limited in scope by office or agency,” but still provided information about the U.S. Attorney's Office for the Northern District of Oklahoma, where its counsel was based. When Plaintiffs' counsel appeared to misconstrue the limited nature of the Government's response at an unrelated hearing, counsel corrected this misunderstanding. The Government included Giglio-related materials from the Oklahoma office in the materials it considered to be within the scope of its discovery responses—hence the multiple references to Giglio in its privilege log. And, the Government produced its own files, including the OIG report and materials relating to Agent Jones' termination, which included the Giglio notice and multiple documents relating to the Giglio issue.

As such, Plaintiffs are not entitled to sanctions under § 1927.

IT IS THEREFORE ORDERED that Plaintiffs' Motion for Sanctions Against the Defendant, United States and Government Counsel, Rachel Parrilli (ECF No. 113) is DENIED.

ORDERED this 16th day of September, 2024.