*1 On May 23, 2023, Judge Sippel entered his Order “that all pending discovery motions shall be referred to the Special Master, the Honorable Mark Seigel.” [Doc. No. 302]. Following the Court's Order, the parties and the Special Master worked to set a hearing on the Motion for Discovery Sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure [Doc. No. 257) (the “Motion for Discovery Sanctions”) filed by Defendant Anne Con (“Defendant”) against Plaintiffs Phyllis Schlafly Revocable Trust, Eagle Trust Fund and Eagle Forum Education and Legal Defense Fund (collectively, “Plaintiffs”). Because the Motion for Discovery Sanctions was fully briefed prior to the appointment of the Special Master. Plaintiffs requested, and Defendant consented to, additional briefing on the Motion for Discovery Sanctions, which was completed on December 18, 2023.[1]

On February 5, 2024, the Special Master conducted a hearing on the Motion for Discovery Sanctions. Defendant appeared through counsel Erik Solverud and Arthur Gregg of Spencer Fane LLP. Plaintiffs appeared through counsel Kelley Farrell and Andrew Blackwell of Capes, Sokol, Goodman & Sarachan, PC (“New Counsel”)[2]. Upon review of the briefing submitted by the parties and the arguments presented at the hearing on February 5, 2024, and in consideration of the record as a whole, the Special Master finds and orders as follows:

As set forth in the Motion for Discovery Sanctions and the briefing submitted by Defendant in support of the same, the Special Master finds that Plaintiffs violated the Court's Memorandum and Order dated June 9, 2022 (the “June 9 Discovery Order”) [Doc. No. 178]. The Special Master further finds that Plaintiffs’ violation of the June 9 Discovery Order, whether intentional or otherwise, resulted in wholly inadequate discovery responses and prejudice to Defendant. Accordingly, Defendant's Motion for Discovery Sanctions is HEREBY GRANTED AS FOLLOWS.

Rule 37(b)(2) of the Federal Rules of Civil Procedure provides that “[i]f a party ... fails to obey an order to provide or permit discovery... the court where the action is pending may issue further just orders.” See Fed. R. Civ. P. 17(b)(2)(A). Such “just orders” are specifically enumerated under Rule 17(b) and include “dismissing the action or proceeding in whole or in part.” Id. at 37(b)(3)(A)(iii), (v). It is well-established that dismissal as a discovery sanction is available if there is “(1) an order compelling discovery, (2) a willful violation of the order, and (3) prejudice to the other party.” See Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014) (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)).

*2 Here, Plaintiffs have willfully violated the June 9 Discovery Order and Defendant has suffered prejudice. However, the Special Master declines to grant Defendant's proposed sanction of dismissal on Plaintiffs’ Second Amended Complaint [Doc. No. 138] with prejudice because of the extreme nature of such a sanction and the availability of less extreme sanctions. The Eighth Circuit has held that “before dismissing a case under Rule 37(b)(2) the court must investigate whether a sanction less extreme than dismissal would suffice, unless the party's failure was deliberate or in bad faith.” See Comstock v. UPS Ground Freight, Inc., 775 F.3d 990, 992 (8th Cir. 2014) (quotation omitted); see also Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, $58 (8th Cir. 1992). The Eighth Circuit has also held that “this ultimate sanction should only be used when less sanctions prove futile.” See Bergstrom, 744 F.3d at 575 (quoting DiMercurio v. Malcom, 716 F.3d 1138, 1140 (8th Cir.2013)). The Special Master also declines to grant Defendant's request for Plaintiff to pay Defendant's portion of the Special Masters fees and costs ordered by the Court. [Doc. No 275].

Instead of dismissing Plaintiffs’ Second Amended Complaint [Doc. No. 138] with prejudice, the Special Master finds that the award of attorneys’ fees is justified and warranted in the circumstances and hereby awards Defendant (1) her reasonable attorneys’ fees incurred in connection with all Phase I discovery and all Phase I dispositive motions prior to April 25, 2023. when New Counsel formally entered their appearance on behalf of Plaintiffs; and (2) her reasonable attorneys’ fees incurred in connection with briefing and presenting Defendant's Motion for Discovery Sanctions. See Burkes v. Coreslab Structures Missouri, Inc., 2020 WL 3273042, at *2 (W.D. Mo. June 17, 2020) (“Instead of or in addition to dismissal, a court may also impose an award of reasonable attorney's fees caused by the party's failure to act.”). Such tees are expressly provided for under Rule 37(b)(2) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 37(b)(2)(C). The Special Master recommends that Defendant may address any Phase I issues in any subsequent motions for summary judgment.

A hearing on Defendant's fee application for the attorneys’ fees awarded herein shall take place by Zoom at 9:00 AM 00 May 3, 2024. Defendant shall submit her written fee application on or before April 5, 2024. and Plaintiffs shall file their response to said fee application on or before April 26, 2024.

Pursuant to the Memorandum and Order [Doc. No 275] appointing the Special Master, any objection to this Special Master Order #9 must be filed within seven (7) days of this Order being filed with the Court. However, by agreement of the Panics, such deadline shall be tolled such that Plaintiffs may submit a single objection to both this Order and the Special Master's subsequent Order on Defendant's fee application, with seven (7) days of such subsequent Order being entered.

SO ORDERED: