Summary
determining liability
Summary of this case from Rahman v. Smith Wollensky Restaurant Group, Inc.Opinion
06 Civ. 6198 (LAK) (JCF).
January 7, 2008
MEMORANDUM AND ORDER
This is an employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and state and local law. In a Memorandum and Order dated May 24, 2007 (the "May 24 Order"), I granted the application of the plaintiff, Mohammed Muhibur Rahman, for an order precluding the defendants from contesting liability as a sanction for their failure to comply with a discovery order of the Honorable Lewis A. Kaplan, U.S.D.J. dated December 13, 2006 (the "December 13 Order"). In response to the defendants' objections to the May 24 Order, Judge Kaplan has remanded the plaintiff's application to me for the purpose of making explicit findings with respect to factors relevant to the imposition of sanctions. (Order dated October 25, 2007 (the "October 25 Order")). For the reasons that follow, I conclude that while certain sanctions remain appropriate, an order of preclusion is unnecessarily harsh.
Background
The discovery dispute that gave rise to the plaintiff's motion for sanctions is succinctly summarized in Judge Kaplan's Order dated July 18, 2007 (the "July 18 Order"):
Defendants simply ignored plaintiff's initial document request. They produced no documents, served no response, and claimed no privilege with respect to any of the requested documents. Plaintiff then moved to compel production of all requested documents. Defendants failed to respond to that motion too. So, on December 1, 2006, the Court directed defendants to "produce the documents requested by plaintiff on or before December 8, 2006." Dkt. item 10. There was no exception for documents as to which privilege was claimed for the simple reason that no such claims had been made.
When the documents were not forthcoming on December 8, plaintiff moved for sanctions. This time defendants awoke from their slumber. But their response said nothing about any claim of privilege. It was plaintiff who, in reply papers, pointed out that defendants subsequently had produced some documents but had failed to produce any privilege log.
(July 18 Order at 2). In response to the plaintiff's motion for sanctions, Judge Kaplan issued the December 13 Order, which states in pertinent part:
Plaintiff argues also that the defendants' responses are insufficient in a number of respects including the failure to turn over a privilege log and the attempt to interpose belated objections to the document requests after having been ordered to produce the requested documents.
These contentions are more substantial. The defendants' failure to respond to plaintiff's document request, which was served on October 19, within thirty days waived all objections to the request. E.g., Eldhagar v. City of New York Dept. of Citywide Admin. Servs., No. 02 Civ. 9151 (KMW) (HBP), 2003 WL 22455224 (S.D.N.Y. Oct. 28, 2003) (Pitman, M.J.) (collecting cases). That is why the December 1 order required production of the requested documents, not simply the service of a response to the document request.
Accordingly, plaintiff's motion is granted to the extent that the defendants shall produce all of the documents requested by plaintiff no later than December 20, 2006 absent [which] defendants shall be precluded from contesting liability in the action.
(December 13 Order at 2).
When the defendants did not meet the December 20 deadline, the plaintiff moved for preclusion, and Judge Kaplan referred the motion to me. I granted it in the May 24 Order. The defendants asserted objections, but Judge Kaplan initially rejected them as untimely. (July 18 Order at 1-2). However, the defendants sought reconsideration, arguing that they were served with the May 24 Order electronically a day later than Judge Kaplan assumed and that their objections were therefore timely. They also sought clarification whether Judge Kaplan's December 13 Order had in fact held that any privilege had been forfeited with respect to the requested documents. Upon reconsideration, Judge Kaplan agreed that the objections were timely. (October 25 Order at 2). In characterizing his prior order, Judge Kaplan stated:
This Court had determined that defendants had waived all objections to plaintiff's document requests and ordered that all responsive documents be produced. Defendants nevertheless took it upon themselves to withhold on grounds of privilege documents that were clearly subject to the order, this notwithstanding clear authority to the effect that the failure to serve a privilege log, as defendants failed here, waived any claim of privilege. Defendants' efforts to justify their actions, moreover, seem unpersuasive and tendentious.
(October 25 Order at 2). Finally, Judge Kaplan remanded the issue of sanctions to me for purposes of "making explicit findings as to the wilfulness and good or bad faith of the defendants, the efficacy of lesser sanctions, and such other considerations as are appropriate in determining whether and what sanctions should be imposed." (October 25 Order at 2-3).
Discussion
When initially presented with the plaintiff's preclusion motion, I viewed Judge Kaplan's December 13 Order as essentially self-executing; that is, he had chosen the appropriate sanction — precluding the defendants from contesting liability — and had designated the event that would trigger its imposition: the failure to produce all requested documents by December 20. Because I determined that the triggering event had in fact occurred, I granted the motion. Judge Kaplan's October 25 Order, however, makes clear that I am authorized to consider the full range of potential sanctions.
That range is broad. Under Rule 37(b) of the Federal Rules of Civil Procedure, a party that fails to comply with a discovery order may be subject to dismissal of its claims, judgment by default, preclusion of evidence, contempt, or the assessment of costs including attorneys' fees. Preclusion, like dismissal or default, is a harsh sanction that should be imposed cautiously. See, e.g., Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 71 (2d Cir. 1988); Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988); Sofitel, Inc. v. Dragon Medical Scientific Communications, Inc., No. 87 Civ. 0167, 1990 WL 164859, at *6 (S.D.N.Y. Oct. 24, 1990); see also Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007) (noting that "sanction of dismissal is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions"); Richardson v. New York City Health Hospitals Corp., No. 05 Civ. 6278, 2007 WL 2597639, at *5 (S.D.N.Y. Aug. 31, 2007) (same). The sanction selected should further the goals of Rule 37(b), which are to "ensure that a party will not benefit from its own failure to comply," to "obtain compliance with the particular order issued," and to "serve a general deterrent effect on the case at hand and on other litigation, provided that the party against whom they are imposed was in some sense at fault." Update Art, Inc., 843 F.2d at 71; accord Richardson, 2007 WL 2597639, at *5. In choosing the appropriate sanction, courts consider a variety of factors, including
"(1) the willfulness of the non-compliant party or the reason for the noncompliance; (2) the efficacy of lesser sanctions; (3) the prejudice to the other party; (4) the duration of the period of noncompliance; and (5) whether the non-compliant party had been warned of the consequences of his noncompliance."Richardson, 2007 WL 2597639, at *6 (quoting Handwerker v. AT T Corp., 211 F.R.D. 203, 208 (S.D.N.Y. 2002).
Here, Judge Kaplan made the consequences of noncompliance perfectly clear: his December 13 Order warned that the defendants would be precluded from contesting liability unless the defendants produced all requested documents by December 20. The remaining factors, however, do not favor a sanction as harsh as preclusion.
First, the culpability of the defendants is diminished by their plausible, though erroneous, interpretation of the December 13 Order. It is now clear that when Judge Kaplan deemed the defendants to have waived all objections to production, he meant to bar them from asserting privilege with respect to the requested documents. (October 25 Order at 2). However, forfeiture of privilege as a consequence of failure to respond to discovery requests or produce a privilege log in a timely fashion is not always automatic. See Burlington Northern Santa Fe Railway Co. v. U.S. District Court for the District of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005) (rejecting per se rule that privilege is deemed waived if log not timely produced); Pem-America, Inc. v. Sunham Home Fashions, LLC, No. 03 Civ. 1377, 2007 WL 3226156, at *2 (S.D.N.Y. Oct. 31, 2007) ("[F]ailure to provide a privilege log alone does not warrant a waiver of the attorney-client privilege."). Therefore, although defendants would have been better advised to seek clarification of the December 13 Order rather than simply withholding documents, their misinterpretation of that order was not plainly in bad faith.
Second, the duration of the defendants' noncompliance was relatively brief. By December 20, they had substantially complied with the Court's direction except insofar as they misconstrued Judge Kaplan's order and failed to produce documents as to which the privilege had been forfeited.
Third, the prejudice to the plaintiff was minimal. Although the litigation was delayed and he incurred the costs of motion practice, the plaintiff has now obtained the requested information, including privileged documents he would not otherwise have been entitled to.
Finally, lesser sanctions than preclusion can ameliorate any prejudice. Since the primary harm to the plaintiff has been the escalation of the costs of litigation, imposition of those costs on the defendants provides sufficient relief.
Conclusion
Accordingly, upon review of the factors relevant to sanctions for failure to comply with a discovery order, I find that the defendants should not be precluded from contesting liability, but that they should bear the costs, including attorneys' fees, of the motion practice generated by their noncompliance. If the parties cannot agree on the amount of costs to be shifted, the plaintiff shall submit an application within two weeks of the date of this Order, and the defendants shall respond within one week thereafter.
SO ORDERED.