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Davis v. Hunt Leibert Jacobson, P.C.

United States District Court, D. Connecticut

June 10, 2016

JAMES DAVIS, Plaintiff,


          Janet Bond Arterton, U.S.D.J.

         Defendant Wells Fargo Bank, NA. ("Wells Fargo") moves [Doc. # 133] for discovery sanctions against Plaintiff James Davis pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) and (C), claiming that Plaintiff has failed to serve adequate and timely responses to Wells Fargo's interrogatories and requests for production, properly preserve evidence and engaged in misconduct in spoliating evidence, and adequately comply with this Court's October 20, 2015 discovery order [Doc. # 90]. Accordingly, Defendant asks this Court to (1) either dismiss Mr. Davis's action against it or to impose the sanction of an adverse inference instruction, and (2) order Plaintiff to pay Wells Fargo's reasonable expenses and attorney's fees. Oral argument was held on March 16, 2016. For the following reasons, Defendant's motion is granted in part and denied in part.

         I. Background

         Plaintiff filed this case on July 31, 2012. Wells Fargo served its First Request for Production of Documents and First Set of Interrogatories on Plaintiff on May 30, 2015, and again on March 18, 2014, following a stay of the litigation. (See First Bizar Aff. [Doc. # 86-1] ¶¶ 3-4; Mar. 18, 2014 Email, Ex. A to First Bizar Aff. at 1) Having received no response, on May 19, 2014, Wells Fargo asked Plaintiffs counsel when it could expect a reply. (See id. ¶ 5; May 19, 2014 Ltr., Ex. B to First Bizar Aff. at 1.) On June 13, 2014, Plaintiffs counsel notified Wells Fargo that while he had "already delivered to [it] the various documents in [his] possession and control that are relevant in connection with [his] Rule 26 obligations[, ] [understanding [that] much of this was informal and in connection with settlement discussions, [he would] again provide [Wells Fargo] with these documents and a formal response to [its] production, " as well as "responses to the outstanding interrogatories" "on or before July 3, 2014." (June 13, 2014 Ltr., Ex. D to First Bizar Aff. at 1.) On July 2, 2014, Plaintiffs counsel asked for "a couple more days." (July 2, 2014 Email, Ex. E to First Bizar Aff. at 1.) However, it was not until September 10, 2014 that Plaintiffs counsel sent any responsive information, and that information was limited to "a link to some photographs." (First Bizar Aff. ¶ 10.)

         On February 23, 2015, the Court entered a revised scheduling order [Doc. # 69] requiring Plaintiff to "complete responses to Wells Fargo['s] outstanding written discovery" by March 4, 2015. On March 12, 2015, Plaintiff finally responded to Wells Fargo's interrogatories, but the responses were not verified, as required by Federal Rule of Civil Procedure 33(b). (First Bizar Aff. ¶ 11.) Plaintiffs March 2015 letter additionally enclosed 348 pages of documents, but it failed to indicate which documents were responsive to which document requests. (Mot. for Sanctions at 4; see First Bizar Aff. ¶ 11.) In August 2015, Plaintiff produced an additional 388 pages of documents. (First Bizar Aff. ¶ 16.)

         On September 8, 2015, Wells Fargo, maintaining that Plaintiffs discovery responses were inadequate, filed a motion to compel [Doc. # 86], which was granted [Doc. # 90] by Magistrate Judge Margolis, absent opposition, by text order on October 20, 2015, with an order that Plaintiff comply by November 23, 2015. The motion to compel sought a court order requiring Plaintiff to: (a) "provide an under oath verification of his responses" to interrogatories; (b) "correct the defects in his responses and fully respond to Wells Fargo's Interrogatories, " specifically, with respect to numbers 2, 4, 5, 7, and 13-17[1]; (c) "provide a written response to Wells Fargo's First Request for Production of Documents, " specifically with respect to request numbers 1-4, 11-16, 20, 24, and 25[2]; (d) "search for and produce" emails and any other documents relating to the allegations in Plaintiffs complaint, or, if Plaintiff "possessed or had custody or control of any such documents from or after the time that Wells Fargo requested but can no longer produce them, " "provide a full explanation"; (e) "execute consents" from Plaintiff and his wife "to accompany subpoenas to their Internet service providers to release their emails"; and (f) "make his computers and smart phones available for a neutral forensic analyst to copy their hard drives and memory storages so that they may be examined for storage of relevant documents, and for tampering." (Mot. to Compel at 6-26.)

         Wells Fargo received revised responses from Plaintiff to Hunt Leibert's requests for production on November 30, 2015 (though the document was dated November 20, 2015), which identified which documents that had already been produced were responsive to which questions.[3] (See Second Bizar Aff. [Doc. # 134] ¶ 6; Suppl. Response Nov. 20, 2015, Ex. A to Second Bizar Aff.) Plaintiffs counsel avers that on November 4, 2015 and December 14, 2015 "counsel for Plaintiff and Defendant Wells Fargo conferred and Defendant's counsel agreed to waive a more formal response and accept the categorizations given in response to Hunt Leibert, which would essentially be identical to the information requested." (Stern Aff. ¶ 7c.) Although Wells Fargo's counsel denies, in his Reply, making "any such agreement, " a sentence later he acknowledges that in fact he did agree "that Plaintiff did not have to identify which document requests any documents he produced responded to if that would reduce his compliance burden." (Reply [Doc. # 149] at 3.)

         Plaintiff did not provide a sworn verification of his responses to the interrogatories until December 17, 2015, three weeks after it was due. (See Stern Aff. ¶ 7a; Ex. B to Stern Aff.) He did not supplement his responses to the interrogatories until January 4, 2015, more than a month and a half after it was due. (See Stern Aff. ¶ 7b; Ex. C to Stern Aff.) Finally, he did not provide explanations for his failure to produce documents requested until March 1, 2016, after Defendant had filed its motion for sanctions. (See Ex. E to Stern Aff.)

         II. Discussion

         Federal Rule of Civil Procedure 37(b)(2)(A) enables a court in a pending action to impose sanctions on a party for failure to comply with a discovery order, including:

(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 ...

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