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Doe v. Hicks

United States District Court, D. Connecticut

September 21, 2016

JANE DOE
v.
HICKS, et al.

          RULING ON AMENDED MOTION FOR SANCTIONS [DOC. #95]

          HON. SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is the motion of plaintiff Jane Doe (“plaintiff”) for sanctions against defendant Sahil, Inc. (“defendant Sahil”). [Doc. #95]. Defendant Sahil filed an untimely response to the Amended Motion for Sanctions, which the Court has ordered stricken. [Doc. #102]. As noted in the Court's Order striking defendant Sahil's response to the Amended Motion for Sanctions, the Court will consider defendant Sahil's previously filed memoranda in opposition to plaintiff's original motion for sanctions, [1] which are docket entries 76 and 88. See Doc. #102 at 5. For the reasons set forth herein, the Court GRANTS, in part, and DENIES, in part, plaintiff's Amended Motion for Sanctions.

         I. Background

         Plaintiff brings this action to redress injuries and other harm she suffered after an alleged sexual assault at the Quality Inn in Windsor Locks, Connecticut. See generally, Doc. #1, Complaint.[2] Plaintiff alleges that at all relevant times, defendant Sahil owned and operated the Quality Inn as a franchisee of Choice Hotels. See Id. at ¶16. Also named as a defendant is Angel Hicks (“defendant Hicks”), who was working as the Quality Inn's sole desk clerk on the night of the alleged assault. See Id. at ¶16.

         Defendants Sahil and Hicks (hereinafter sometimes collectively referred to as the “defendants”) served their jointly prepared Rule 26(a)(1)(A) initial disclosures on plaintiff's counsel on October 14, 2015 (hereinafter the “initial disclosures”). [Doc. #95-3]. Defendants' initial disclosures list only two individuals as “likely to have discoverable information, ” besides those identified in plaintiff's initial disclosures. Those two individuals are defendant Hicks and Jessica Dimeo, an employee of defendant Sahil. See Doc. #95-3 at 2. Plaintiff represents that these disclosures have never been supplemented. See Doc. #95-1 at 5.

         Soon after the initial disclosures were provided, the parties began written discovery. On November 24, 2015, plaintiff received defendant Sahil's responses to its first set of written discovery requests. See Doc. #95-4, Sahil's Responses to Plaintiff's First Set of Interrogatories; Doc. #95-5, Sahil's Responses to Plaintiff's First Set of Requests for Production of Documents. Following the receipt of what plaintiff believed to be complete responses to her written discovery requests, plaintiff's counsel traveled to Connecticut for the purpose of taking and defending a total of eight depositions between December 15, 2015, and December 22, 2015.[3]

         Plaintiff's counsel deposed defendant Hicks on December 19, 2015. See Doc. #95-6, December 19, 2015, Deposition of Angel Hicks (“original Hicks deposition”). During the examination of Hicks by defense counsel, a colloquy occurred which suggested that defense counsel had seen and reviewed Hicks' employment application. See Doc. #95-6 at 108:5-109:25. However, defendant Sahil had asserted in its response to requests for production dated October 22, 2015, that it had no “documents concerning the employment of Defendant Angel Hicks[.]” Doc. #95-5 at 2, Response to Request No. 2.

         At approximately 10:50PM on December 20, 2015[4] -- the day after the original Hicks deposition -- defense counsel served amended responses to plaintiff's written discovery requests. See Doc. #95-8, Sahil's Amended Responses to Plaintiff's First Set of Interrogatories and Amended Responses to Plaintiff's First Set of Requests for Production (hereinafter the “amended discovery responses”). Attached to these amended discovery responses were documents that appear to constitute a personnel file for defendant Hicks, including application materials. See Doc. #95-1 at 8; Doc. #95-7. These materials are indisputably responsive to the plaintiff's requests.

         In these amended discovery responses defendant Sahil also identified, for the first time, Eric Moody (“Moody”), a former employee of Sahil, as an individual who supervised defendant Hicks and participated in the decision to hire her. See Doc. #95-7 at 2, Interrogatory No. 2. Mr. Moody was identified in defendant Sahil's initial interrogatory responses as an individual who participated in managing the Quality Inn. See Doc. #95-4 at Interrogatory No. 3. However, because he was not listed in Sahil's initial disclosures, and the information regarding his direct involvement with defendant Hicks had not previously been provided, plaintiff had not arranged to depose Mr. Moody. See Doc. #95-1 at 9.[5]

         The deposition of Sahil's 30(b)(6) designee, Mr. Patel, was scheduled to occur on December 21, 2015, at 9:00AM, some ten hours after the amended discovery responses were emailed to counsel. See Doc. #95-1 at 9-10. Because plaintiff's counsel did not have an opportunity to review the amended discovery responses before Sahil's 30(b)(6) deposition, plaintiff's counsel was “forced to question Patel about those documents without any preparation.” Doc. #95-1 at 10. During the December 21, 2015, deposition of Sahil's 30(b)(6) designee, Mr. Patel confirmed that Mr. Moody: supervised defendant Hicks; provided her with training concerning guest security; made the decision to hire her; and was responsible for monitoring crime in and around the Quality Inn. See generally Doc. #95-9, December 21, 2015, R. 30(b)(6) Deposition of Sahil, Inc.

         By the conclusion of the 30(b)(6) deposition it was clear to plaintiff that Mr. Moody was an important witness. In light of the December 22, 2015, fact deposition deadline, however, it was too late to notice the deposition of Mr. Moody. See Doc. #95-1 at 10.

         Accordingly, plaintiff filed an Emergency Motion for Sanctions, which sought both Rule 37 sanctions and substantive relief relating to Sahil's production of documents and to the taking of additional and/or continued fact witness depositions. [Doc. #71-1 at 16-17]. The undersigned held a telephonic conference on January 6, 2016, to address the issues raised in the Emergency Motion for Sanctions. [Doc. #72]. During that conference, the Court granted the Emergency Motion for Sanctions to the extent plaintiff requested certain substantive relief. Specifically, the Court ordered: (1) that plaintiff would be permitted to take the deposition of Mr. Moody, and supplemental depositions of both Hicks and Sahil's 30(b)(6) witness, on or before January 29, 2016; and (2) that by January 13, 2016, defendants Sahil and Hicks provide plaintiff with a written attestation stating under oath “the nature and scope of the search conducted ... for documents responsive to plaintiff's written discovery requests [and] that all responsive non-privileged documents have been produced[.]” Doc. #77 at 2-3. The Court took under advisement plaintiff's request for Rule 37 sanctions. See Id. at 2.

         In accordance with the Court's order, plaintiff took the supplemental depositions of Hicks and of Sahil's 30(b)(6) witness, Mr. Patel, on January 26, 2016. Plaintiff took the deposition of Mr. Moody on January 25, 2016. Plaintiff states that Mr. Patel's testimony at Sahil's 30(b)(6) supplemental deposition “exposed the egregiousness of Sahil's discovery abuses[, ]” including:

(1) That at the time Patel signed a January 13, 2016, affidavit attesting to Sahil's discovery compliance, “he understood that he had an obligation to search his emails for documents responsive to Doe's discovery requests, but he had not performed such a search[;]”
(2) That Mr. Patel permitted Sahil's counsel to serve its initial disclosures “knowing they were incorrect in that they did not identify Moody or Patel as persons who might have discoverable information[;]”
(3) That Mr. Patel permitted Sahil's counsel to serve Sahil's responses to plaintiff's First Set of Interrogatories knowing that those responses omitted “critical information[;]” and
(4) That Mr. Patel “was aware of the existence of Hicks's personnel file in October 2015 and gave a copy to Sahil's counsel on December 17, 2015[.]”

Doc. #95-1 at 11 (sic). As a result of these alleged abuses, plaintiff contends she “has incurred significant costs and attorneys' fees in seeking redress for -- and conducting three fact witness depositions necessitated by -- Sahil's failure to timely disclose” critical information. Doc. #95-1 at 15.

         Defendant Sahil responds that there have been no discovery abuses and that plaintiff inappropriately filed the initial motion for sanctions on an emergency basis without conferring in an effort to resolve the disputes without court intervention. See Doc. #88 at 1-2. Defendant Sahil represents that counsel first received notice of the alleged “discovery abuses” in a December 30, 2015, email correspondence from plaintiff's counsel. See id. at 1-2, 11-14. Defendant Sahil further represents that it “disclosed additional information” pursuant to its continuing duty of disclosure, and that it was “agreeable to additional discovery, made a proposal for discovery compliance to resolve plaintiff counsel's concerns, and made counsel aware [that defense counsel was away through the New Year].” Doc. #88 at 2. Defendant Sahil also represents that no response to this proposal was received, and that plaintiff filed the Emergency Motion for Sanctions without conferring with him. See Id. at 2. The Court will address defendant Sahil's arguments with respect to each specific alleged discovery abuse in the discussion below.

         II. Legal Standard

         Rule 26(a) governs the parties' mandatory initial disclosures. Pertinent to the discussion below, Rule 26(a)(1)(A)(i) requires disclosure of:

the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Fed. R. Civ. P. 26(a)(1)(A)(i). This information is to be provided “without awaiting a discovery request[.]” Fed.R.Civ.P. 26(a)(1)(A).

         Rule 26(e) requires supplementation of prior disclosures or responses to discovery:

A party who has made a disclosure under Rule 26(a) -- or who has responded to an interrogatory, request for production, or request for admission -- must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing[.]

Fed. R. Civ. P. 26(e)(1)(A).

         Rule 37(c)(1) describes the available remedies when a party fails to comply with these Rules:

If a party fails to provide information ... as required by Rule 26(a) or (e), the party is not allowed to use that information ... to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: ... may ...

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