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Starr Indem. & Liab. Ins. Co. v. River & Roads Directional Drilling, LLC

2024 WL 4907403 (S.D. Miss. 2024)

October 15, 2024

Isaac, LaKeysha G., United States Magistrate Judge

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Summary

The court addressed competing motions for sanctions between the parties, Starr and Parker, regarding discovery violations and privilege logs. The court found that Starr's counsel had engaged in misconduct during a trial deposition and imposed a monetary sanction. The court also reserved judgment on whether further sanctions would be awarded against Starr's counsel or their client. Additionally, the court addressed the issue of privilege logs and found that Starr had failed to comply with court orders, but reserved ruling on Parker's request for sanctions.

Additional Decisions

STARR INDEMNITY & LIABILITY INSURANCE COMPANY PLAINTIFF
v.
RIVER & ROADS DIRECTIONAL DRILLING, LLC, et al. DEFENDANTS

CIVIL ACTION NO. 3:23-cv-00215-CWR-LGI

United States District Court, S.D. Mississippi, Northern Division

Filed October 15, 2024

Isaac, LaKeysha G., United States Magistrate Judge

ORDER

*1 This matter is before the Court on competing motions for sanctions. Defendant Ethan Parker (“Parker”) filed a [110] Motion for Sanctions against Plaintiff Starr Indemnity & Liability Insurance Company (“Plaintiff” or “Starr”).[1] Starr filed a [160] Response in Opposition, and Parker filed a [180] Reply. Also before the Court are Starr's [173] Motion for Sanctions against Parker and [178] Second Motion for Sanctions against Parker. Parker filed a Consolidated [186] Response in Opposition to both [173] and [178]. Starr filed a [193] Reply. In addition to the competing motions for sanctions, also before the Court is Parker's [288] Motion to Compel Starr to Pay Expert Invoice.

Pursuant to Judge Reeves's recent Order [350] deferring to the undersigned for fact-finding as to alleged violations of her discovery orders, the Court also includes its factual findings as to Parker's [143] Second Motion for Sanctions.[2]

The Court, having considered the submissions, the record and relevant law, finds that Parker's [110] Motion for Sanctions should be GRANTED IN PART AND DENIED IN PART, WITHOUT PREJUDICE; Starr's [173] Motion for Sanctions against Parker should be DENIED; Starr's [178] Second Motion for Sanctions against Parker should also be DENIED; and Parker's [288] Motion to Compel should be rendered MOOT IN PART and DENIED IN PART, as discussed below. Finally, the Court includes its findings of fact as to [143] Parker's Second Motion for Sanctions, and reserves judgment as to whether monetary or other sanctions will be awarded against Attorney Edward J. Currie, Jr., Attorney Cheryl Vollweiler, or their client for the conduct set forth in said Motion.

I. STANDARD OF REVIEW

As a preliminary matter, the Court sets forth the scope of discovery and the Federal Rules governing the parties' discovery disputes.

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

*2 Fed. R. Civ. P. 26(b)(1).

A. Claims of Privilege

As it pertains to claims of privilege, a party who responds to or objects to discovery requests and who withholds information otherwise discoverable, asserting that the information is privileged or subject to other protection from discovery, must assert the claim expressly and must describe the nature of the documents, communications, or things not produced or disclosed, such that, without revealing the privileged or protected information itself, the description will enable other parties to assess the applicability of the privilege or protection. See Fed. R. Civ. P. 26(b)(6).

B. Deposition Misconduct

When considering the imposition of sanctions as it pertains to alleged violations during a deposition, this Court looks to Rule 30(d)(2), which provides, “the court may impose an appropriate sanction – including the reasonable expenses and attorney's fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent. Fed. R. Civ. P. 30(d)(2).

C. Failure to Comply with Discovery Orders

The Federal Rules of Civil Procedure provide for sanctions against a party who fails to comply with a court's discovery orders. Federal Rule of Civil Procedure 37(b)(2)(A) provides:

If a party or a party's officer, director, or managing agent--or a witness designated under Rule 30(b)(6) or 31(a)(4)--fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:

(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).

II. ETHAN PARKER'S MOTION FOR SANCTIONS [110]

a. Deposition misconduct

Parker moves this Court to impose sanctions against Starr for allegedly committing “sanctionable misconduct ... on December 11, 2023, during the trial deposition of claims adjuster Maureen Stromberg.” Doc. [248] at 2. For support, Parker points to an email sent from Starr's counsel to this Court on December 13, 2023, wherein Starr's counsel, Edward J. Currie, Jr. (“Attorney Currie”), self-reported that “[he] committed a discovery violation at the deposition of Maureen Stromberg.” Doc. [110-1], Exhibit 1. In his email, Attorney Currie admitted that during a break, he “more or less gave the witness a ‘thumbs up or down’ on how things were going, and also commented on certain words she should watch for when she was being questioned....” Id. See also Doc. [248] at 2-3; Exhibit 2, Dep. Tr. of M. Stromberg. Attorney Currie also informed this Court that he had objected and instructed the witness, Ms. Stromberg, not to answer when Parker's counsel sought testimony regarding the discussions between Attorney Currie and Stromberg that were had during the break. Id. Recognizing the violation, Attorney Currie, in his email to this Court, stated, “I committed the exact type of violation that is reported in Bracey v. Delta Technical College, 2016 WL 918939 (N.D. Miss. Mar. 9, 2016)[,]” and he suggests that he, like the attorney in Bracey, be subjected to a $500.00 fine, made payable to a “worthy charity.” Doc. [110-1], Exhibit 1.

*3 Despite Attorney Currie self-reporting his own discovery violation and suggesting a fine, Parker urges this Court to impose more severe sanctions than those suggested in Attorney Currie's email to this Court. Parker contends that the improper interference with Stromberg's trial testimony is not an isolated, one-time event. Doc. [248] at 3. He avers that “Starr and its counsel have continuously disrupted [Parker's] right to discover truthful and accurate information regarding Starr's bad faith denial of his insurance claim,” and further argues the alleged misconduct warrants a Rule 37 sanction of an adverse instruction. Id. Parker asserts Starr had an ongoing duty to act in good faith even after the lawsuit was filed, but it claims Starr interfered with the trial testimony of Stromberg and of another witness, claims adjuster Paul Zatopek. Parker alleges that Zatopek retracted “damaging” deposition testimony after a break and lied about the existence of certain critical company documents. Id. at 4-8. Parker accuses Starr's counsel of substantively coaching Zatopek to change his testimony, and he charges Zatopek with committing perjury. Id. at 11. Notably, Parker admits that Starr has not acknowledged these accusations, but he claims the purported violation is obvious from Zatopek's deposition transcript. Id. This, he argues, constitutes both a discovery violation and a post-lawsuit act of bad faith. Id. at 4. For manipulating the trial testimony of these claims adjusters, Parker seeks Rule 37 sanctions against Starr and an adverse inference instruction for bad faith. Id.

Starr responds in opposition, arguing that Parker's motion for sanctions and the claims therein “are based on unsupported allegations, blatantly false and defamatory statements, gross overreaching, and disingenuous reliance on clearly distinguishable authorities.” Doc. [252][3] at 1-2. As to the allegations surrounding the depositions of Stromberg and Zatopek, Starr contends Rule 37(b) is not the proper vehicle for seeking relief, as it asserts there was no court order in place pertaining to either of these depositions. Id. at 2. Thus, Starr argues sanctions are improper for the purported discovery violations and the alleged misconduct at either deposition. It further contends this alleged discovery violation is governed by Rule 30(d)(2), not Rule 37(b). Id. at 3. It also submits that sanctions are inappropriate here because there is no evidence that Starr's counsel impeded, delayed or frustrated the fair examination of Stromberg or Zatopek. Id. at 3-4. Starr claims there is no evidence to suggest that witness coaching occurred, and Parker's representation of such is an “unfair mischaracterization of the facts in the record.” Id. at 4. It contends that counsel for Starr did not “tell[ ] the witness what to say or how to answer a specific question.” Id. at 8 (citing to the definition of witness coaching in Bracey v. Delta Technical College, No. 3:14CV238-MPM-SAA, 2016 WL 918939, at *1 (N.D. Miss. Mar. 9, 2016) (quoting In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998)). Starr also argues that Parker has yet to advise exactly what testimony Stromberg changed after any given break. Id. at 12.

Further, despite Attorney Currie's email to this Court admitting to discovery violations during Stromberg's deposition and citing to Bracey, No. 3:14CV238-MPM-SAA, 2016 WL 918939, at *1 (N.D. Miss. Mar. 9, 2016) in support, Starr's counsel now asserts that Bracey is not binding on this Court. Indeed, it contends there are no binding authorities on this Court holding that an attorney cannot consult with his client during a deposition break, and therefore, Starr's counsel declares he self-reported the perceived violation in error. Id. at 14. Even still, Starr requests that the Court reject Parker's invitation to adopt a “strict no-consultation rule” as set forth in Hall v. Clifton Precision, a Division of Litton Systems, Inc., 150 F.R.D. 525, 531 (E.D. Pa. 1993) (wherein the district court held that “[c]ounsel and their witness-clients shall not engage in private, off-the-record conferences during depositions or during breaks or recesses, except for the purpose of deciding whether to assert a privilege”). Id. at 9. Despite now arguing that Bracey is non-binding upon this Court, Starr urges that if this Court follows Bracey, that it, like the Bracey court, award monetary sanctions rather than impose the extreme sanction of an adverse inference instruction. Id. at 14-15.

*4 Starr also contends Parker has set forth no evidence that suggests coaching as to witness Zatopek. Id. at 15-17. It argues that Parker's counsel “persistently bullied [Zatopek]” for a different response, [and] eventually [Zatopek] stated that there “may have been a conflict” at the time that Starr issued its reservation of rights letter.” Id. at 17. However, it avers that Zatopek clarified the issue, stating “I think I got a little bit confused. There was a series of questions coming at me pretty hard. And I think I was just starting to look at it the wrong way because I got flustered.” Id. Further, Zatopek testified that he changed his testimony but “not under direction of [his] counsel.” Id. at 18 (citing Zatopek's Deposition, Doc. [110-3] at 383-84). Starr argues Parker's allegations regarding Zatopek are unsupported accusations, and therefore, it rebuffs claims of perjury. Id. at 19-21. Rather, Starr submits that Zatopek's testimony regarding the claims handling guidelines was the “result of a mere memory lapse, i.e. an honest mistake.” Id. at 22.

Starr argues that Parker has not met his burden of establishing that Zatopek or Starr acted in bad faith, and it requests that this Court deny Parker's request for the sanction of adverse inference or any other sanction under Rule 37. Id. Starr also argues that Parker has not been prejudiced by not receiving the claims handling guidelines before or during Zatopek's deposition; it contends Parker never made a formal Rule 34 request for the guidelines prior to said deposition, never filed a motion to compel or obtained an order compelling production of the guidelines. Id. at 23-24. Finally, Starr claims Parker has not been prejudiced because Zatopek and Stromberg's depositions remain open, but it faults Parker for his failure to avail himself of the opportunity to remedy any alleged prejudice. Id. at 25.

As to the specific request for an adverse inference instruction regarding Starr's alleged perjury, witness tampering, and disruption of depositions in bad faith, this Court does not reach the issue. “As a general rule, in this circuit, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’ ” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 614 (S.D. Tex. 2010) (citations omitted). Holloway by & through Holloway v. Marion Cnty., Mississippi, No. 2:18-CV-00117-KS-MTP, 2020 WL 1469474, at *8 (S.D. Miss. Mar. 26, 2020). Essentially, the requested sanction of an adverse inference instruction amounts to a dispositive sanction[4], which is more appropriately placed before the district judge[5] for consideration during an evidentiary hearing.[6]

Notwithstanding the above, the undersigned accepts the now withdrawn recommendation of Starr's counsel to impose sanctions in the form of attorneys' fees and expenses. Although Starr argues that Bracey is not binding on this Court, the undersigned finds the Bracey court's analysis instructive and holds here that Attorney Currie's admitted misconduct violates discovery decorum. Specifically, Attorney Currie admitted to conferring with his client during break(s) in the deposition, and he also admitted to instructing his client not to answer questions about the communications on the basis of privilege. Starr's counsel also recognizes that Parker's counsel is entitled to finish his examination of Stromberg, as counsel repeatedly asserts that both the depositions of Stromberg and Zatopek remain open. This Court stops short of accusing Attorney Currie of coaching deposition witnesses, but it finds that counsel's interruptions and behavior impeded opposing counsel's examination of Stromberg. Because the alleged deposition misconduct solely concerns Starr's counsel – not his client – this Court imposes monetary sanctions against Attorney Currie only.

*5 Starr contends that Rule 37 sanctions are inapplicable here, and this Court agrees. Pursuant to Rule 30(d)(2), the Court awards reasonable expenses and attorney's fees. The Court hereby imposes a monetary sanction of $1,000.00 to be paid by Attorney Currie to Parker to offset fees incurred in taking the deposition of Stromberg and to aid in covering the fees that may be incurred should Parker decide to resume the deposition of Stromberg.

As to alleged misconduct regarding Zatopek, this Court is not persuaded that counsel coached that deponent during a break or that Zatopek intentionally lied about the existence of the subject document. Starr denies any misconduct, and Parker merely asserts that misconduct occurred, stating that the alleged misconduct was “obvious.” Contrary to Parker's assertion, the transcript of Zatopek's deposition reflects that he expressly denied changing his testimony at the behest of Starr's counsel. “The Fifth Circuit has held that perjury is a ‘serious offense that constitutes a severe affront to the courts and thwarts the administration of justice[,]” and for this “Court to impose sanctions, it must first find that [Zatopek] committed perjury.” Rimkus Consulting Grp., Inc., 688 F. Supp. 2d at 648 (noting that “[c]ontradictory trial testimony, however, merely establishes a credibility question for the jury.”). “Perjury is defined as the “willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.’ ” Edwards v. Allstate Ins. Co., No. 3:20-CV-661-KHJ-FKB, 2022 WL 330999, at *3 (S.D. Miss. Feb. 3, 2022) Id. at *3 (citation omitted). “Perjury is [also] not established by mere contradictory testimony from witnesses or inconsistencies in a witness's testimony.” Rogers v. Medline Indus., Inc., No. 1:17CV118-HSO-JCG, 2018 WL 6683015, at *3 (S.D. Miss. Dec. 19, 2018). Here, Zatopek testified that he “got a little bit confused ... [and] got flustered during his deposition[,]” and he denied changing his testimony upon the instruction of counsel. Parker has not shown that sanctions are warranted for misconduct during Zatopek's deposition, and therefore no sanctions are awarded.

Parker's request for sanctions related to counsel's alleged misconduct during the depositions of Stromberg and Zatopek is hereby GRANTED in part and DENIED in part, without prejudice. As to counsel's misconduct during the deposition of Stromberg, the Court awards reasonable expenses and attorney's fees under Rule 30(d)(2). The court hereby imposes a monetary sanction of $1,000.00 to be paid by Attorney Currie, not his client, to Parker to offset fees incurred in taking the deposition of Stromberg and to aid in covering the fees that may be incurred should Parker decide to resume the deposition of Stromberg. The Court declines to award sanctions for alleged misconduct and/or violations during the deposition of Zatopek.

The issue of what further sanction(s), if any, are warranted should be carried forward with the case for further development of evidence concerning the circumstances occasioning Parker's request for an adverse inference instruction.

b. Violation of Court Orders Regarding Discovery

In his pursuit of sanctions, Parker also claims Starr failed to comply with this Court's orders and built a pattern of abuses and misconduct during written discovery, including obstruction through refusal to “answer the most basic questions” and delays in production of discoverable documents. Doc. [248] at 8-11. Parker contends Starr's evasive tactics necessitated discovery conferences before the undersigned, wherein Starr was ordered to answer and produce all responsive documents and privilege logs. Id. at 9 (citing to this Court's Order [50] and Text-only Order, dated 10/20/23). Even more, Parker claims “Starr flatly defied the Court's order” by piecemealing document production and withholding over 2,000 documents, which he claims hampered his ability to effectively examine Zatopek during his trial deposition. Id. at 19-20. Parker argues Starr's failure to produce these documents violated the Court's earlier order, prejudiced his case, and also evidences Starr's pattern of discovery misconduct, warranting sanctions under Rule 37(b)(2)(A).[7]

*6 Parker further argues “Starr's repeated discovery violations and tainted trial testimony bring into question what else Starr is concealing and what other efforts it has engaged in to taint the evidence.” Doc. [248] at 16. Therefore, he argues “the question before the Court ... is not whether Starr should be sanctioned; the question is how Starr should be sanctioned.” Id. at 2. Parker moves for sanctions under Rule 37(b), for failure to obey discovery orders. He also moves for sanctions, including contempt, under Rule 37(b)(2); he seeks reasonable attorney's fees associated with persistent discovery abuses, the inordinate amount of time spent working on said issues, and the fees incurred in drafting the instant motion. Id. at 21.

In its Response, Starr contends the requested sanctions are not justified, and it argues Parker never met and conferred with Starr's counsel about these issues, never filed a motion to compel and never provided the Court with a Certificate of Good Faith, as required by Rule 37. Doc. [252] at 28. Thus, it argues that Rule 37 sanctions would be inappropriate. Id. Starr asserts that Parker did not comply with the Court's December 8, 2023 order, requiring the parties to meet and confer, and instead Parker filed the instant motion for sanctions. Id. at 29. While Starr admits that it failed to meet the Court's deadline to produce all responsive documents by October 23, 2023, it asserts that it missed the deadline by one day, but it declares that its failure to comply was “substantially justified” in that it discovered additional responsive documents and only produced such upon said realization. Id. at 29-30. Starr asserts it has now produced all non-privileged responsive documents and produced all privilege logs. Id. at 29.

In his Reply [249], Parker argues that Starr, even if one day late, is not justified in failing to comply with this Court's order to supplement its discovery production and produce its final privilege log. Parker challenges Starr's claim that it has produced all documents, as he argues Starr still has not provided its final privilege log. Doc. [249] at 11. Moreover, Parker contends he was prejudiced by Starr's late production of documents, and he argues he was deprived of certain documents prior to the depositions. Id. Further, he contends re-deposing Stromberg and Zatopek cannot cure the damage already done in this case. Id. at 11. Parker also contends that Starr's procedural arguments that he failed to meet and confer are meritless, as he had no obligation to meet and confer before seeking sanctions for Starr's “disobedience of this Court's orders.” Id. at 12. Parker argues he has no obligation to meet and confer regarding the “alleged coaching of trial testimony or perjurious testimony,” as he is not seeking relief under Rule 37(a). Id. at 13. He argues Rule 37(b) leaves no room for discretion, stating – if a party violates a court's discovery order, fees must be awarded. Id. at 14. Thus, Parker urges the Court to use its inherent authority to enforce its orders and impose sanctions as requested.

This Court may impose sanctions for failure to obey a discovery order. See Fed. R. Civ.P. 37(b)(2)(A). Rule 37 also provides for a court to order the payment of reasonable attorney fees, unless the failure to obey orders was substantially justified or the imposition of fees would be unjust. Id. Per Rule 37(b)(2)(C), “[i]nstead of or in addition to the orders set forth in Rule 37(b)(2)(A), the court must order the disobedient party, the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified.” Griffin Indus., Inc. v. Mississippi Poultry Corp., No. 3:09CV576 TSL-FKB, 2010 WL 5092131, at *1–2 (S.D. Miss. Nov. 19, 2010), report and recommendation adopted as modified, No. 3:09CV576 TSL-FKB, 2010 WL 5092130 (S.D. Miss. Dec. 8, 2010).

*7 Parker moves for sanctions under Rule 37(b), charging that Starr failed to obey discovery orders. Specifically, Parker points to Starr's late production of documents after this Court ordered production by a date certain. Starr admits that it failed to meet the Court's deadline to produce all responsive documents. However, as to this instance, Starr contends that its failure to timely obey this Court's order was substantially justified, as Starr claims that it missed the deadline by one day and states that the delay resulted after it discovered additional responsive documents and produced those documents. The Court cautions Starr against unilaterally deciding to extend a deadline, even to remedy an oversight. The Court requires strict adherence to the deadlines set forth in its orders and admonishes that if either party finds that a short extension is necessary, the party must seek leave of the court to avoid sanctions for failure to comply.

Parker's request for an adverse inference instruction is not resolved in this order and shall be taken up by the district judge in due course. The Court reserves its ruling on Parker's request for sanctions and/or a finding of contempt as to the violations of discovery orders and other discovery misconduct. The Court's ruling will be forthcoming following the evidentiary hearing currently scheduled to take place on October 16, 2024.

III. ETHAN PARKER'S SECOND MOTION FOR SANCTIONS [143]

On September 26, 2024, Judge Reeves entered an Order on [350] Ethan Parker's Second Motion for Sanctions [143]. The Order [350] provides in part:

Most of the motion concerns Starr's alleged non-compliance with Judge Isaac's Orders. Because she is better positioned to consider whether Starr violated her Orders, issued in the context of her discovery hearing, the part of the motion that seeks factual findings on such non-compliance will be denied without prejudice, and this Court will defer to her for more context.

Order, Doc. [350] at 1.

In his second motion for sanctions, Parker complains that Starr has failed, for a second time, to comply with this Court's discovery Order. Doc. [144] at 2. Specifically, Parker contends Starr did not cure its deficient privilege log by the deadline set forth in the undersigned's “second mandatory order of January 10, 2024.” Id. (see also Text-only Order, dated 1/10/2024, providing “Starr Indemnity & Liability Insurance Company is ordered to supplement its privilege log, to cure the previously noted deficiencies, by 1/19/2024. No further extensions of time shall be granted as to this issue.”). Parker alleges Starr's privilege log is overbroad, and it claims Starr disregarded this Court's order requiring complete supplementation of the log by January 19, 2024. Id. (Emphasis added).

Parker submits that Starr supplemented and cured only one section of its seven-part privilege log and also produced 191 documents that it previously and improperly withheld, but that Starr failed to address entirely the remaining six portions of its log. Id. at 4-5. Parker argues that Starr's “uncured, unaddressed log segments 1-6 contain plainly discoverable information that Starr continues to withhold, in defiance of this Court's ‘no further extensions’ order requiring Starr to cure and supplement its privilege log.” Id. at 15. For the alleged failure to comply with the January 10 Order, Parker seeks a sanction against Starr in the form of an order that Starr has waived any claim of privilege as to all documents created on or before March 28, 2023, the inception of Starr's lawsuit seeking declaratory relief.[8] Id. at 3.

*8 Starr responds in opposition. Doc. [177]. The Court incorporates herein Judge Reeves's succinct summary of Starr's position on Parker's Second Motion for Sanctions.

Starr's argument is simple. It says it complied with Judge Isaac's January 10, 2024 Order and therefore should not be sanctioned. In Starr's view, the Order required it to supplement only its sixth privilege log, rather than all of its privilege logs. And in justifying its actions, Starr's brief claims that “at the time of the January 10 Order, it is undisputed that Parker had never raised any alleged deficiencies with respect to any specific entries from Starr's other privilege logs, much less brought any such alleged deficiencies before the Court.” Docket No. 177 at 9 n.1 (emphasis in original).
That statement is false. At the December 8, 2023 discovery hearing, in arguing that “some of these privilege logs are very broad,” Parker showed the Court “an example here of Starr 320, which is ... an e-mail from Maureen Stromberg at Sedgwick to Paul Zatopek ... dated September of 2021.” Docket No. 119 at 11. Starr 320 is on Starr's first privilege log. Docket No. 143-1 at 6. That means Parker had raised alleged deficiencies with respect to specific entries from Starr's other privilege logs and brought the alleged deficiencies before the Court, all before Judge Isaac's January 10 Order.

Order [350] at 1-2.

In addition to Starr's contention that it complied with the undersigned's directive to supplement its privilege log – the one segment referenced at the December 8 hearing – Starr also argues Parker himself failed to comply with the undersigned's directives to “[g]ive ... [Starr] a list of Parker's privilege log objections” and also to meet and confer. Doc. [177] at 6 (internal quotations omitted); id at 9. Starr points to a string of emails between Starr and Parker's counsel, and then to Parker's email to the Court advising that “Starr ha[d] failed to supplement it logs for months ... [and] ... request[ing] that the Court set yet another firm deadline for Starr to provide complete and accurate logs.” Id. at 7 (quoting January 5, 2024 Email from Maison Heidelberg to Judge Isaac [Doc. 143-11] at 1). Starr avers the Court, in response to Parker's email, entered its order directing Starr “to supplement its privilege log, to cure the previously noted deficiencies by1/19/2024.” Id. (citing Text-only Order, dated 1/10/2024). Starr argues the Court's January 10 order only ordered it to supplement the privilege log reviewed by the Court during the December 8 hearing. Id. at 10. And it claims Starr supplemented its log (“in the singular”) and also produced additional documents that it previously withheld. Id. at 11 (emphasis added).

Moreover, Starr contends Parker never provided Starr with a list of the alleged privilege log deficiencies, and he also failed to meet and confer before seeking court intervention as ordered by this Court. Id. at 12-14. Starr avers it has acted in good faith – as it repeatedly expressed willingness to engage in a meet and confer on Parker's objections to any privilege log. Id. at 17. Starr urges the Court to deny Parker's Second Motion for Sanctions [143], arguing that Parker failed to comply with the Court's orders, that he raised for the first time in his second motion specific objections to various entries in all of Starr's privilege logs, and that the motion fails to comport with Federal Rule 37(a)(1) and Local Rule 37. Id. at 14-16.

*9 In his Reply [184], Parker contends he did in fact confer with Starr regarding the deficient privilege logs. And he contends Starr relies on the procedural arguments regarding meeting and conferring merely to avoid producing discoverable information, to disrupt Parker's right to discovery and to excuse its own discovery abuses. Doc. [184] at 2. Parker characterizes Starr's claim that it interpreted the Court's January 10 order as a directive to cure the deficiencies as to “one [privilege] log subpart only” is “contorted.” Id. at 2-3. In his reply, Parker sets forth an exhaustive list of his counsel's efforts to meet and confer to resolve the many discovery issues between these two parties. Id. at 2-3. The list references specific instances wherein Parker claims Starr agreed to respond to Parker's discovery requests by certain dates but failed to comply. Id. Beginning on June 28, 2023 and through approximately January 24, 2024, Parker points to twenty-one (21) instances of his conferral communications to Starr. Id. at 3-6. Notably, Parker asserts “even though [he] did meet and confer the law did not require him” to do so “in advance of filing a motion for sanctions ... for failure to obey a discovery order.” Id. at 3, n. 1 (citations omitted).

Further, Parker challenges Starr's claims that it complied with the January 10 order. Parker contends the Court never described the seven parts of Starr's log to be independent of one another....” Id. at 8. He argues the Court's findings about log deficiencies was not limited to “only one log subpart but rather described the deficiency as to the exemplar as problematic.” Id. at 9. Parker points out the subject order specified there would be no further extensions and referenced previously noted deficiencies stemming from review of an exemplar at the December 8 hearing. Id. Thus, he argues “the only conceivable interpretation of the order ... would be to supplement the log to correct all entries like the ‘exemplar’, which was inadequate.” Id. Thus, Parker argues the Court's January 10 Order applied to any entry on Starr's log that was facially deficient – like the exemplar. Id. Parker urges this Court to grant his second motion, claiming that Starr's partial production and correction is non-compliant with the governing Order. Id. at 11.

As to Starr's alleged non-compliance, as set forth in Parker's Second Motion for Sanctions [143], the undersigned makes factual findings.[9],[10] In determining whether Starr has wholly failed to comply with this Court's previous discovery orders to supplement its deficient privilege log(s), the Court first outlines the relevant procedural history leading up to the orders. On October 12, 2023, Parker, via email, requested a discovery conference noting, “[a]s to document production, we asked for Starr's claims file and privilege log. Starr has not provided it, nor provided a date certain by which it will produce same.” Email from Maison Heidelberg to Judge Isaac's Chambers, dated 10/12/2023. On October 19, 2023, after failed collection attempts, counsel for Parker requested that the Court “impose a firm deadline for Starr's production of all claims files and all privilege logs..., accompanied by a meaningful penalty if that deadline is not met.” Email from Maison Heidelberg to Judge Isaac's Chambers, dated 10/19/2023. After several emails to the Court, from counsel for Parker and counsel for Starr, the undersigned ordered Starr “to provide to Defendants responsive documents and privilege logs by 5:00 PM on October 23, 2023.” See Text-only Order, dated 10/20/2023.

*10 On November 30, 2023, Parker's counsel again emailed the undersigned's Chambers requesting a telephonic conference to address alleged discovery violations by Starr, “including improper claims of privilege and an overbroad privilege log.” Email and letter attachment from Maison Heidelberg to Judge Isaac's Chambers, dated 11/20/2023. On December 8, 2023, the undersigned held a discovery hearing to address several discovery disputes raised by the parties via email correspondence to the Court. See Minute Entry and Text-only Order, dated 12/02/2023. During the hearing, Parker's counsel “mentioned the privilege log issue in the hearing.... [and] the Court reviewed one representative privilege log entry during the hearing and commented on the deficiency.” Parker's Memorandum in Support of Second Motion for Sanctions, Doc. [144] at 4.

Regarding the “representative” privilege log, the following exchange occurred between the parties and the Court:

THE COURT: Do you have a copy of the privilege log with you?
MR. HEIDELBERG: There's so many of them, I may.
THE COURT: I want to see an exemplar. Mr. Currie, do you have a copy of one of your privilege logs with you today? Mr. Currie, do you have a copy of any of your privilege logs with you today?
MR. CURRIE: No, Your Honor. We didn't bring it because it wasn't (INAUDIBLE).
THE COURT: Okay. He may have one.
MR. HEIDELBERG: Your Honor, I've got one of the privilege logs here. Let me see if this is on there.
THE COURT: I want to see a general example of what we're talking about.
MR. HEIDELBERG: I don't think I have the privilege log that addresses this.
THE COURT: Okay. And you all can submit that to me separately.
MR. HEIDELBERG: We'll send that to you.
THE COURT: I would like to see what these logs look like and whether they're sufficiently descriptive.
MR. HEIDELBERG: I've got some more here. Let me just look. I may have it. May I approach, Your Honor?
THE COURT: Yes, you may. Thank you. You can continue with your argument. Mr. Heidelberg, while you're doing that, upon review of the privilege logs, have you had any contact with Mr. Currie or any other defense counsel in which you indicated a particular description may not be sufficient and asked for a more full description?
MR. HEIDELBERG: We have.
THE COURT: And what was the response?
MR. HEIDELBERG: Mr. Welch sent an e-mail. Ms. Vollweiler responded on November the 20th. I've got a copy of her response. What I can't tell you is that that was comprehensive, because, again, the documents are rolling and I don't have – I'll be honest with you. What I'd prefer to do is just give you a list or give them a list of all the ones that look suspect to me.
THE COURT: Yes, let's do that. Give them a list, and I'm going to have you all meet and confer. I will tell you my initial review of the privilege log without having the documents, I would need the documents to make a real decision, but just looking at it, they don't appear sufficiently descriptive in order for someone to be able to tell whether the document -- to ask for whatever additional information they need to contest whether the document is indeed privileged. I don't think that the description -- from what I'm seeing, the descriptions are not descriptive enough. But I'm going to reserve judgment on that and give you all an opportunity to discuss this with each other through a meet and confer and/or if you all choose to supplement the privilege log or amend it, I'll give you the opportunity to do so. But I want more information on these privilege logs.

Discovery Hearing Transcript, dated 12/8/2023, Doc. No. [119] at 11:19-13:23. (Emphasis added).

Parker alleges Starr has been non-compliant with the undersigned's discovery orders, including the “star” of the instant motion – the Court's January 10 Order requiring supplementation of Starr's privilege log. This Court agrees that Starr has in fact failed to comply with the Court's January 10 Order, as it finds that Starr's (mis)interpretation of the order is unreasonable and disingenuous. During the December 8 hearing, counsel for Parker represented that “some of the[ ] privilege logs are very broad... [,]” and discussion with the Court commenced regarding the sufficiency of the logs. Hearing Transcr. at 11:3. The undersigned clearly requested from both parties an “exemplar” of the disputed privilege log for the purpose of ascertaining the sufficiency of the log thus far. Id. at 11:22; see also id. at 12:6 (The undersigned stated, “I want to see a general example of what we're talking about.”). By definition, exemplar means “one that serves as a model or example.” See https://www.merriam-webster.com/dictionary/exemplar, September 30, 2024; see also Black's Law Dictionary, 12th Ed., Bryan A. Garner, Exemplar, p. 715 (defining exemplar as “an ideal example”).

*11 Furthermore, even if Starr genuinely misunderstood the Court's intention that it cure all alleged deficiencies related to the logs, it is apparent to the Court that this misunderstanding, at the very least, should have been crystallized once counsel engaged in email correspondence. After Starr indicated that “the supplemental privilege log produced last week replace[d] the prior privilege log pertaining to STARR 06175-20647, which was the privilege log you showed Judge Isaac at the 12/8/23 [hearing] and which Judge Isaac instructed us to revise[,]” opposing counsel responded with confusion. Doc. [176-4] at 2, Exhibit “D”. Parker's counsel stated, “[i]t seems as though you supplemented and cured as to one log but not the other four logs.” Id. The Court recognizes Starr's counsel of record as seasoned professionals with many years of practice, who are each very well-versed in the Federal Rules of Civil Procedure and this Court's Local Rules. Those rules provide that parties have an ongoing duty to supplement disclosures and responses in a timely manner and as ordered by the court. See Fed. R. Civ. P. 26(e) and L.U.Civ.R. 26(a)(5). As to this issue, the Court makes the factual finding that Starr failed to comply with its discovery orders, and it reserves ruling as to whether an imposition of sanctions against Attorneys Currie and Vollweiler and/or against Starr is appropriate.[11]

Starr contends that its ability to comply with the Court's orders was hampered by Parker's failure to meet and confer as mandated by the governing CMO. Parker asserts it was unnecessary for him to meet and confer before filing the instant motion for sanctions, yet the underlying issue for which he seeks sanctions rests in a discovery dispute. Discovery disputes, by order of this Court, do in fact require the parties to meet and confer prior to seeking leave of the Court to file a motion. See Amended Case Management Order, Doc. [42] at 3, ¶ 4. Moreover, this Court, having heard argument on Parker's objection to the sufficiency of Starr's privilege logs, also ordered that Parker – at Parker's request – “give [Starr] a list” of the objections regarding insufficiency of specific privilege log entries, and it gave the parties “an opportunity to discuss [the issues] ... through a meet and confer” regarding the privilege log(s).

A review of the string of emails between Parker and Starr, following Starr's supplementation on January 19, reveals that Starr repeatedly sought to engage in discussions with Parker as to his belief that the log(s) remained deficient and uncured. Counsel for Starr stated, “[i]f you have any questions or objections with respect to those logs, please advise and we will be happy to schedule a date and time for a meet and confer.” Email from Edward J. Currie, Jr. to Maison Heidelberg on 1/24/2024, Doc. [176-4] at 2. In response, Parker's counsel stated, “I am glad to discuss by phone, but I do not know what there is to meet and confer about as you either supplemented and cured your logs or you did not.” Email response from Maison Heidelberg to Edward J. Currie, Jr. on 1/24/2024, Id. Again, Attorney Currie offered, “If you have any particular issue with the other privilege logs, we are willing to have a substantive meet and confer. To comply with local rules, we believe a[n] in-person meet and confer is required and I'm willing to come to your office for this purpose.” Email response from Edward J. Currie, Jr. on 1/24/24, Id. at 1. Attorney Heidelberg merely replied, “Understood.” Id. And then the instant second motion for sanctions followed on February 6, 2024.

In his reply, Parker avers he engaged in numerous conferral communications with Starr's counsel, which he claims is evidence of his attempts to work with counsel to obtain a compliant privilege log. Doc. [184] at 6. During the pendency of this litigation, the undersigned has engaged in much email correspondence, many telephonic conferences, and entered numerous discovery orders. Thus, these parties are abundantly clear as to the Court's requirement that the parties engage in good faith discussions (i.e. confer) in person or by telephonic or videographic means to try to resolve their discovery disputes. The Court has repeatedly reiterated that email and letter exchanges are insufficient to satisfy the meet and confer requirement.

*12 Based on the record before it, this Court finds that Starr's privilege logs remained deficient and uncured at the time of the filing of the instant motion. The Court agrees that Parker's counsel failed to meet and confer and ultimately filed the instant motion prior to seeking a conference with the Court, as required by the CMO. Parker's failure to meet and confer was a procedural violation, whereas Starr's failure to adhere to its obligation to set forth its claimed privileges with the requisite specificity, and failure to seasonably supplement those logs despite the Court's directive to do so, is a substantive violation. While the Court views both violations with the utmost seriousness, it finds in this narrow instance that Starr's violations outweigh Parker's failure to meet and confer.

The Court reserves its ruling on Parker's request for sanctions as to the violations of the discovery orders and other discovery misconduct. The Court's ruling will be forthcoming following the evidentiary hearing currently scheduled to take place on October 16, 2024.

To the extent that Parker seeks an order determining that Starr has waived any claim of privilege as to all documents created on or before March 28, 2023, this issue is not resolved herein and shall be taken up by the district judge in due course.

IV. STARR'S MOTIONS FOR SANCTIONS [173] AND [178]

a. Starr's Cross-Motion for Sanctions [173]

Starr has filed its own motions for sanctions, requesting that this Court enter an award of attorney's fees and expenses against Parker and his counsel for alleged misconduct throughout the course of discovery. See Doc [253].[12] Starr also moves this Court to enjoin Parker and his counsel from “making unsubstantiated accusations of document alteration, perjury and witness tampering throughout the remainder of the case.” Id. at 26. Starr argues Parker has repeatedly declined to meet and confer with Starr to resolve discovery disputes. Starr contends rather than attempting to resolve the many discovery disputes that have arisen, Parker has ignored Starr's request and instead “ran directly to the Court seeking relief, including multiple requests for sanctions.” Id. at 3. Starr points to several instances – 1) Parker's October 12, 2023 email to the Court requesting a discovery conference; 2) Parker's October 19, 2023 email to the Court, asserting an ore tenus motion to compel; 3) Parker's November 30, 2023 letter to the Court, accusing Starr of wrongfully withholding the April 5, 2023 letter from Parker's underlying defense counsel, Jim Weems; 4) accusing Starr of altering emails before producing them to Parker, and 5) making an ore tenus motion to compel Starr to produce its claims handling guidelines despite having no pending formal request for production; 6) Parker's December 4, 2023 letter to the Court alleging misconduct, because Starr made belated-objections to the Rule 30(b)(6) Notice that it had previously agreed upon. Id. at 3-14.

In addition to Parker's failure to meet and confer to resolve discovery disputes, Starr claims Parker, in seeking an order compelling Starr to supplement its discovery response to Interrogatory No. 2, failed to attach a Certificate of Good Faith, which it asserts is required under Rule 37(a). Id. at 4. Starr avers that at this point, Parker has made no fewer than five (5) requests that sanctions be imposed on Starr instead of seeking to resolve discovery disputes through a meaningful meet and confer. Id. at 3, n. 2. Starr argues Parker's pattern of “running to the Court” for all discovery issues is an attempt to mislead the Court. Id. at n.3; see also Doc. [253] at 12. Starr accuses Parker's counsel of making misleading and unfounded assertions in seeking sanctions regarding production, which it alleges shows Parker's “bad faith course of conduct of litigating discovery in violation of the Rules.” Id. at 14. Starr avers if Parker had complied with the mandatory meet and confer requirements before making “his string of ore tenus motions to compel and seeking sanctions, most of the discovery disputes likely would have been resolved.... [or] at least would have resulted in a narrowing [of] the issues before seeking the Court's intervention.” Id.

*13 Starr asserts that Parker, after being unsuccessful on his ore tenus motions, filed his formal motion for sanctions – without seeking a meet and confer – essentially raising all the same grounds addressed in his prior emails and letters, “plus a few more false and defamatory grounds for good measure.” Id. at 15. Starr vehemently urges sanctions, pursuant to Rules 37(a), (d), Local Rule 37(a) and the governing Case Management Order [42], arguing that each authority sets forth requirements that parties meet and confer in good faith before bringing discovery disputes to the Court. Id. at 17. Starr contends that Parker's counsel did not make an effort to resolve discovery disputes before involving the Court. Id. at 18. Starr also asserts it is entitled to sanctions based on Parker's counsel's unsupported accusations, which it deems as clear and convincing evidence of bad faith abuse of the judicial process. Id. at 22-23.

According to Starr, “Parker has made numerous baseless requests for sanctions and ore tenus motions to compel absent any good faith meet and confer compliance, all based on his counsel's various misrepresentations and other misleading statements to the Court.” Id. at 26. It argues the “tactics have wasted both the Court's and Starr's time and resources in bad faith, effectively multiplying the proceedings and ballooning Starr's defense costs to defend against frivolous, vexatious, defamatory claims and harassment.” Id. Thus, Starr seeks sanctions against Parker.

b. Starr's Second Cross-Motion for Sanctions [178]

Starr's Second Cross-Motion for Sanctions focuses on disputes regarding Starr's privilege logs. Starr moves for sanctions, pursuant to Rule 37(a), arguing that Parker violated the Court's December 8, 2023 orders directing Parker to provide Starr with a list of its privilege log objections and to meet and confer with Starr. Doc. [179] at 1. Starr contends it produced seven privilege logs, but Parker challenged the sufficiency of only one of the logs – Privilege Log No. 6, produced on November 8, 2023. Id. at 2. Starr asserts that Parker raised objections in a letter, dated November 20, 2023, and thereafter he sought the assistance of the Court, via letter dated November 30, 2023. Id. at 3. On December 8, 2023, the Court held a discovery conference, wherein the subject privilege log was addressed. Id. at 4-5; see Minute Entry, dated 12/8/2023. Starr asserts the undersigned instructed Parker to give Starr a list of his privilege log objections, but he failed to do so. Id. at 6. Starr seeks sanctions, arguing that Parker never provided the list but instead engaged in email communication with Parker's counsel requesting supplementation of the privilege log. Id.

Starr avers that it informed Parker's counsel that it planned to provide its final privilege log by January 12. However, on January 5, 2024, Parker emailed the Court regarding the privilege log issues. Id. On January 10, 2024, the Court “ordered [Starr] to supplement its privilege log, to cure the previously noted deficiencies, by 1/19/2024...” Id. at 7 (quoting Text-only Order, dated 1/10/24). Starr asserts that it complied with the Court's order when it filed an amended version of the subject privilege log, on January 19, 2024, and when it produced additional documents that it claims were mistakenly withheld based on the original version of the log. Id. According to Starr, the parties engaged in email communication regarding the amended privilege log, wherein Parker's counsel objected to several of the entries as deficient. Id. at 8. Starr argues that it invited Parker's counsel to provide a list of said deficiencies and for counsel to meet and confer about any issues. Id. According to Starr, Parker then filed his Second Motion for Sanctions[13], “identifying for the first-time specific entries from Starr's other privilege logs that Parker contends are deficient.” Id. at 8-9.

*14 Starr requests that the Court assess attorneys' fees and expenses against Parker and his counsel, as Starr contends Parker violated the undersigned's December 8, 2023 Order, requiring Parker to provide Starr with a list of privilege log objections and to meet and confer. Id. at 10. It also seeks sanctions for Parker's alleged repeated failures to meet and confer with Starr over discovery disputes, in violation of Federal Rule of Civil Procedure 37(a) and (d), Local Rule 37(a)), and the Court's Case Management Order [Doc. 42]. Starr asserts Parker's second motion for sanctions shows a clear pattern of Parker ignoring the meet and confer obligation before seeking court intervention. Id. at 12. Thus, it urges this Court to grant the instant motion for sanctions against Parker and to enter an order awarding attorneys' fees and expenses incurred while responding to the second motion for sanctions. Id. at 14.

c. Parker's Consolidated Response to Starr's Cross-Motions for Sanctions

Parker responds in opposition to both Starr's Cross-Motion [173] and Second Cross-Motion for Sanctions [178]. See Responses in Opposition, Docs. [186] and [188]. Parker files one consolidated memorandum in support of his response in opposition to both motions. See Docs. [187] and [189][14]. Parker accuses Starr of deflecting and redirecting blame onto him to “obfuscate the egregiousness of its own violation of this Court's order and its other discovery misconduct.” Doc. [187], [189] at 2. He submits that he has filed well-founded motions for sanctions, and Starr's cross motions are merely a diversion. Id. Parker refers the Court to its pending motion for sanctions, accompanying memoranda, and responses for support of these claims. Parker argues that Starr has intentionally misrepresented the record in its present motions. Id. at 3. He asserts that he did not violate any meet and confer obligations. Rather, he contends that he has “exhaustively met and conferred with Starr since the inception of this action and in conjunction with the discovery production and privilege log issues.” Id. at 3. Parker asserts he has repeatedly sought Court intervention to obtain the discovery he is entitled to receive, because Starr has made every effort to delay, evade and prevent him from obtaining truthful and complete discovery. Id. Further, Parker argues he was not required to meet and confer before seeking the relief requested in his motions, as his motions for sanctions “are largely premised on Starr's steadfast refusal to comply with this Court's orders.” Id. (citing Federal Rule Civil Procedure 37(b); Pride Centric Res., Inc. v. LaPorte, 2021 WL 257978, 85 n.4 (E.D. a. June 23, 2021); and Luv N'Care, Ltd. v. Laurain, 2020 WL 412350, *4 (W.D. La. Jan. 24, 2020) (asserting there is no meet-and-confer requirement for violation of discovery order). Parker contends Starr offers no authority to the contrary. [187], [189] at 3. Moreover, Parker contends a meet and confer is futile and cannot cure the prejudice alleged by Parker in his motions. Id. He also submits that his counsel followed the procedures set forth in the Court's CMO. Id. at 3, n.1.

Parker recalls that Starr admitted a discovery violation, and he argues that Starr now seeks to use its own admitted violation as an affirmative basis to seek sanctions against him. Id. at 4. He argues that his counsel did not make unsupported accusations or misrepresentations, as Starr claims. Id. Parker also rebuffs Starr's claims that he has presented his written motions for the purpose of harassment or to increase the cost of litigation, which he states would seemingly arise under Rule 11(b)-type sanctions and relief. Id. at 4-5. Parker also argues that he did not violate this Court's December 8, 2023 orders regarding the deficient privilege logs. Id. He contends Starr is disingenuous in claiming that it was unaware that Parker objected to all of the privilege logs as deficient. Id. Parker further claims there was a myriad of correspondence to Starr regarding the deficiencies in the logs. Id. at 5. Parker urges this Court to deny Starr's motions, arguing the motions lack merit. Id. at 6. He contends Starr has breached discovery orders of this Court – not him, and instead of complying with court orders, Parker argues Starr files diversionary motions to shift attention from itself. Id.

*15 Starr filed a Rebuttal [194], reasserting its initial arguments but specifically responding to Parker's assertion that he was not obligated to meet and confer with Starr. Starr contends this assertion is “wrong.” Id. at 3. It charges that the meet and confer requirement in the Federal Rules is a mandate, not an invitation. Id. at 2. And it points out that Court involvement in discovery disputes is only “a last resort” if counsel cannot resolve a dispute through reasonable cooperation with meet and confer. Id. at 3 (citation omitted). Again, Starr argues Parker repeatedly breached the requirement to meet and confer in good faith, which it argues warrants sanctions against him. Id. at 4-5. Starr contends the written correspondence from Parker's counsel outlining alleged deficiencies in discovery and demanding immediate coverage does not satisfy meet and confer requirements. Id. at 5. Starr also points out the Court's December 8, 2023 Order required it to supplement “one specific privilege log” and also ordered Parker to meet and confer with Starr. Id. at 7. Starr avers it complied, but Parker failed to obey. Id. Further, Starr contends that Parker cannot argue that he was prejudiced, after he refused to engage in meaningful meet and confer sessions, improperly sought Court intervention, and also filed a motion for partial summary judgment on the core coverage issue. Id. at 8.

Starr also contends the mere fact that Parker proceeded with sanctions motions, instead of a motion to compel, indicates that Parker is employing distraction tactics. Id. Starr submits that it offered Parker's counsel the opportunity to cure his alleged violations, by way of a Rule 11 letter, dated February 15, 2024, but Parker declined. Id. at 8-9. Thus, Starr contends Parker could have avoided these sanction motions. Id. at 8-9.

d. Court's Analysis

A court may impose sanctions, including dismissing claims or rendering a default judgment, against a party who fails to obey discovery orders. Fed. R. Civ. P. 37(b)(2)(A). Federal Rule of Civil Procedure 37 provides that: If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders. Fed. R. Civ. P. 37. Rule 37 also provides for a court to order the payment of reasonable attorney's fees, unless the failure to obey orders was substantially justified or the imposition of fees would be unjust. Id. A federal court possesses inherent power to sanction bad-faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). This includes the power to impose a default judgment. Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995).

Here, the Court is particularly concerned with the number of accusations regarding alleged misconduct and failures to comply with Court orders and rules. The Court notes the many discovery disputes that have arisen in this case, and it points out that counsel for the parties appear to have abandoned meaningful efforts to resolve discovery disputes in the manner set forth in the governing CMO. The undersigned is greatly disturbed at counsel's inability to navigate through litigation in this case with professionalism and civility.

As to Starr's motions for sanctions, Starr requests this Court enter an award of attorney's fees and expenses against Parker and his counsel for alleged misconduct throughout the course of discovery. Starr also moves this Court to enjoin Parker and his counsel from “making unsubstantiated accusations of document alteration, perjury and witness tampering throughout the remainder of the case.” In its second motion, Starr requests that the Court assess attorneys' fees and expenses against Parker and his counsel, for violating the December 8, 2023 Order, requiring Parker to provide Starr with a list of privilege log objections and to meet and confer. It also seeks sanctions for Parker's alleged repeated failures to meet and confer with Starr over discovery disputes, in violation of Federal Rule of Civil Procedure 37(a) and (d), Local Rule 37(a)), and the Court's Case Management Order [Doc. 42].

Again, Starr alleges that Parker's counsel failed to meet and confer and failed to provide Plaintiff with a list of deficiencies as to the privilege log. However, Parker's contention is that the privilege logs were wholly deficient on their face, and that he repeatedly indicated such to Starr's counsel. Parker further contends that absent an amendment or supplementation in which Starr set forth sufficient information to enable him to assess the applicability of the claimed privilege, a meet and confer would have been fruitless. While the Court believes that Parker should have sought guidance from the Court as to his plan of action, the Court declines to award sanctions against Parker in this instance based on the record before it.

*16 Starr's Motion for Sanctions is hereby DENIED, and its Second Motion is also DENIED.

V. PARKER'S MOTION TO COMPEL [288]

On July 31, 2024, Parker filed a Motion to Compel [288], wherein Parker moves this Court for an order compelling Starr to pay the invoice of Plaintiff's expert Louis G. Fey, who was deposed by Starr on April 15, 2024. Parker attaches as an exhibit Mr. Fey's invoice, totaling $9,200.47. Doc. [288] at 2, ¶ 4. Parker asserts that Starr's counsel acknowledged receipt of the invoice and “promised to follow through with payment,” but despite the promise and additional follow-up, the subject invoice remains unpaid. Id. at 3, ¶7-8 (internal quotations omitted). Additionally, Parker seeks an award of reasonable attorney's fees for bringing the instant motion. Id. at 3, ¶ 11.

Starr responds in opposition, arguing that the issues set forth in Parker's motion have been resolved. Doc. [291]. It contends that Fey has been paid and the motion is therefore moot. Id. at 2, ¶ 2. Starr avers it always intended to pay Fey's invoice. However, Parker failed to submit Fey's W-9, which Starr states was needed to facilitate payment. Id. at 2 ¶¶ 2-3. Starr asserts once it received the documentation, payment was issued on July 25, 2024. Id. Thus, Starr requests this Court moot the instant motion. Starr alternatively argues the motion should be denied because Parker failed to attach a good faith certificate and also failed to follow proper protocol for resolving the subject dispute. Id. at 2-3. Starr also contends that Parker's counsel is not entitled to attorney's fees and costs, as the subject motion, which is not a discovery motion contemplated by Rule 37, should have been withdrawn once confirmation of payment was received. Id. at 4, ¶¶ 11, 15. Starr urges the Court to moot or deny Parker's motion to compel and for attorney's fees.

Parker replies, arguing that Starr paid the invoice after he filed the instant motion. Doc. [292] at 1. He contends the motion is not moot, and he maintains that reasonable attorney's fees should be awarded for him having to bring the motion. Id. at 2, ¶ 4. Parker also contends that counsel conferred with Plaintiff three times before filing the motion, but that Court intervention was not sought, as it was not required. Id. at ¶ 5.

Upon consideration, the Court finds that Motion to Compel [288] shall be mooted in part and shall be denied in part. As to the request for payment of Fey's invoice, it is clear that Starr has tendered payment. Thus, the issue of payment is rendered moot. Parker's remaining request for attorney's fees is due to be denied. Parker relies on his email communications with Starr to suffice as compliance with this Court's orders to meet and confer in good faith. He failed to seek a telephonic conference before filing a discovery motion and to affix a good faith certificate memorializing counsel's effort to resolve the issue. See Doc. [42], Amended Case Management Order.

Despite Parker's belief that the present issue “was not an issue that required guidance or input from the Court,” the undersigned disagrees. Doc. [292] at 2. The underlying dispute is grounded in a discovery matter - nonpayment of an expert's invoice for his deposition. In his email correspondence to Starr's counsel, counsel for Parker acknowledges this discovery issue. See Doc. [288-1] at 4; Email from Chad Welch to Edward J. Currie, Jr. (Attorney Welch states, “I have attached Mr. Fey's invoice for his deposition. Pursuant to Rule 26(b)(4)E), please forward this to Starr and/or place this in line for payment.”).[15] Parties are bound by this Court's case management order, which expresses provides:

*17 The court desires to avoid the necessity of filing written discovery motions where court participation in an informal discussion of the issue might resolve it[.] ... Consequently, before a party may serve any discovery motion, counsel must first confer in good faith as required by Fed. R. Civ. P. 37(a)(1). If the attorney conference does not resolve the dispute, counsel must contact the chambers of the magistrate judge to request a telephonic conference to discuss the issue.... Only if the telephonic conference with the judge is unsuccessful in resolving the issue may a party file a discovery motion.

Doc. [42] at 3, F.4.; Amended Case Management Order. (Emphasis added). The Court has been lenient towards Parker's counsel for his failures to seek court assistance to resolve issues via conference with the undersigned prior to filing discovery-related motions, given Starr's stonewalling and obstructionist behavior throughout the discovery process. Here, it declines to award attorney's fees to Parker's counsel for preparing an unnecessary motion. This discrete issue could have been easily resolved through a telephonic conference with the Court. In this instance, there will be no award for the expense of Parker's motion or for his failure to seek Court intervention prior to filing the motion. Parker's [288] Motion to Compel is hereby rendered MOOT IN PART and DENIED IN PART.

CONCLUSION

Despite the many allegations of misconduct and ample evidence of incivility during the discovery process in this case, the Court takes no pleasure in the rulings issued on this date. At this juncture, the Court orders as follows:

IT IS THEREFORE ORDERED that [110] Parker's Motion for Sanctions shall be GRANTED IN¶ PART AND DENIED IN PART, without prejudice. For counsel's misconduct during the deposition of Stromberg, the Court hereby imposes a monetary sanction of $1,000.00 to be paid solely by Attorney Edward J. Currie, Jr., not his client, to Parker, no later than November 15, 2024. Parker's motion for sanctions as to alleged misconduct and/or violations committed during the deposition of Zatopek, is hereby denied. Parker's request for an adverse inference instruction is not resolved in this order and shall be taken up by the district judge in due course. The Court reserves its ruling on Parker's request for sanctions and/or a finding of contempt as to the violations of discovery orders and other discovery misconduct.
IT IS FURTHER ORDERED that Starr's [173] Motion for Sanctions against Parker is hereby DENIED and Starr's [178] Second Motion for Sanctions against Parker is hereby DENIED.
IT IS FURTHER ORDERED that Parker's [288] Motion to Compel is hereby rendered MOOT IN PART and DENIED IN PART..
The Court has included herein its factual findings as to Parker's [143] Second Motion for Sanctions. The Court makes the factual finding that Starr failed to comply with its discovery orders and committed other discovery violations throughout the discovery process in this matter. It reserves judgment as to whether the imposition of monetary or other sanctions against Starr and/or against Attorneys Currie and Vollweiler is appropriate as a result of such conduct. The Court's ruling will be forthcoming following the evidentiary hearing currently scheduled to take place on October 16, 2024.

*18 SO ORDERED this the 15th day of October, 2024.

Footnotes

[1]

Parker originally filed his [110] Motion and [111] Memorandum for sanctions, with redactions of confidential information. Parker later filed the unredacted version of the motion [247] and memorandum [248]. The undersigned cites to the unredacted version of the filings for ease of understanding and brevity.

[2]

On September 26, 2024, District Judge Reeves ruled on Parker's [143] Second Motion for Sanctions, finding that “the part of the motion that seeks factual findings on ... non-compliance [with Judge Isaac's Orders], will be denied without prejudice, and this Court will defer to her for more context.” Thus, the undersigned addresses this portion of [143] Parker's motion herein.

[3]

Starr originally filed its Response in Opposition [160] and accompanying Memorandum in Support [161] with redactions. Starr later filed its unredacted memorandum. See Notice of Conventional Filing, Doc. [250] and Starr's unredacted memorandum, Doc. [252]. This Court cites to the unredacted version of Starr's memorandum.

[4]

Of note, the undersigned points out that the requested sanction of an adverse inference instruction has most often been considered by district courts in Mississippi and by the Fifth Circuit in cases involving spoliation or destruction of evidence. See most recent cases: Malone v. Cooke Ins. Ctr., Inc., No. 3:22-CV-35-SA-JMV, 2024 WL 1337196 (N.D. Miss. Mar. 28, 2024); Calsep A/S v. Dabral, 84 F.4th 304, 312 (5th Cir. 2023); Berkley v. Lafayette Cnty., Mississippi, No. 3:19-CV-217-MPM-JMV, 2021 WL 6755480, (N.D. Miss. Dec. 3, 2021).

[5]

See Maggette v. BL Dev. Corp., No. 2:07-CV-181, 2010 WL 2010816, at *7 (N.D. Miss. May 17, 2010) (deciding on the dispositive sanction of adverse inference instruction to the jury).

[6]

The undersigned notes the District Judge recently concluded that a hearing is necessary to determine “whether a sanction tailored to this case would be a jury instruction explaining that Starr misrepresented facts to the Court during the course of the litigation, or something else. See Order [350] granting in part and denying in part Parker's Second Motion for Sanctions [143].

[7]

Yet again, Parker moves this court for an adverse inference instruction, alleging bad faith. The Court refers to its earlier analysis, supra, and reiterates that it declines to reach this issue.

[8]

Parker also moved this Court for a default judgment against Starr's affirmative claims asserted in its Second Amended Complaint. Doc. [143]. The Court granted Parker's motion to the extent that a sanctions hearing will be scheduled, but it denied the motion without prejudice in all other respects. See Order, Doc. [350]. The undersigned provides no analysis as to the request for default judgment.

[9]

In his September 26, 2024 Order [350] Judge Reeves deferred to the undersigned for factual findings on Starr's alleged non-compliance with the undersigned's orders. The Order [350] further provided: “The Court will await Judge Isaac's ruling on the other three sanctions motions now pending before her. It will then hold a hearing to understand whether Starr's misrepresentation reflects a pattern of conduct and whether sanctions are due to be imposed under the governing legal standard.” Id. at 2.

[10]

Notably, on September 30, 2024, after entry of Judge Reeves' Order [350], Starr filed a Notice of Service of Privilege Logs, wherein it attests to having served by electronic mail seven (7) amended privilege logs and other documents. See Doc. [353].

[11]

Attorneys Edward J. Currie, Jr. and Cheryl Vollweiler were lead counsel of record for Starr during the time of the misconduct and other allegations raised in the motions before the Court. Beginning on or about June 25, 2024, Starr retained additional counsel from the law firms of Balch & Bingham, LLP. See Notices of Appearance on behalf of Starr, Doc. Nos. [283], [284], [329].

[12]

Starr originally filed its [173] Cross-Motion and [174] Memorandum for sanctions with redactions of confidential information. Starr later filed the unredacted version of the memorandum [253]. The undersigned cites to the unredacted version of the filings for ease of understanding and brevity.

[13]

Parker's Second Motion for Sanctions [143] is currently pending before District Judge Reeves for hearing and final disposition.

[14]

Notably, the separate responses are identical versions, filed separately as responses to Doc. Nos. [173] and [178].

[15]

Rule 26(b)(4)(E) provides “Unless manifest injustice would result, the court must require that that party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the experts facts and opinions. (Emphasis added).