Moore v. Chertoff

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
REGINALD MOORE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 00-953 (RWR/DAR)
)
JANET NAPOLITANO, )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiffs, African-American current and former special
agents of the United States Secret Service, brought this
employment discrimination action individually and on behalf of a
putative class of African-American special agents against the
Secretary of the Department of Homeland Security. The defendant
objects to the magistrate judge’s imposition of sanctions that
were imposed under Federal Rule of Civil Procedure 37 after the
magistrate judge granted a motion to compel a reasonable search
for paper documents responsive to the plaintiffs’ document
requests and after the defendant violated the compulsion order.
The defendant has not shown that the magistrate judge erred in
imposing sanctions under Rule 37 for the defendant’s discovery
violation or violation of the order. The preclusion sanction,
though, will be construed to preclude the defendant from offering
any legitimate, nondiscriminatory reason for a nonpromotion in
response to any prima facie case of disparate treatment
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discrimination against the individual named plaintiffs, but not
otherwise preclude the defendant from defending the case.
BACKGROUND
On October 29, 2007, after the defendant’s Rule 30(b)(6)
designee testified that the Secret Service had not searched the
records of any decisionmaker in response to the plaintiffs’
discovery requests served over a year earlier, the plaintiffs
filed a motion for sanctions and to compel the defendant to
comply with her discovery obligation “to conduct a reasonable
search for and to produce all documents responsive to [the
plaintiffs’] requests for production, including ‘print and save’
e-mails, ‘contemporaneous notes,’ and other documents ‘regarding
the actual substantive promotion[] decisions made by the Secret
Service supervisors and managers that adversely affected the
Plaintiffs and the [putative] class.’” Moore v. Chertoff, 255
F.R.D. 10, 13 (D.D.C. 2008) (quoting Pls.’ Mot. to Compel a
Reasonable Search (“Pls.’ Mot. to Compel”) at 1-2, 15-18). The
document requests at issue included a request by the plaintiffs
served on May 23, 2006 seeking “[a]ll documents, . . . whether
stored electronically or in hard copy, that contain information
on the selection of” Special Agents for promotion to the relevant
positions. (Pls.’ Mot. to Compel at 3.) Plaintiffs also served
on June 15, 2006 a document request, seeking all documents
related “to the bid and selection process for each competitive
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promotion” sought by the individual named plaintiffs and all
documents “provided to or reviewed by individuals who” made the
promotions decisions for each position for which the individual
named plaintiffs applied. (See id. at 4 ¶¶ 5, 8.) The
plaintiffs also sought a preclusion sanction that would prevent
the defendant from defending against the plaintiffs’ individual
and class action prima facie cases of discriminatory
nonpromotion. (See id. at 20.) On December 21, 2007, the
magistrate judge granted the plaintiffs’ motion to compel the
defendant to conduct a reasonable search for responsive paper
documents, ordered production of the documents by January 7,
2008, and ordered the defendant as a partial sanction to pay the
plaintiffs’ costs, including reasonable attorneys’ fees, of
moving to compel such discovery. She vowed a further hearing for
the purpose of determining any additional appropriate sanction
for the defendant’s discovery violation. Moore, 255 F.R.D. at
14. The magistrate judge held an evidentiary hearing at which,
though, the plaintiffs also vowed “to ‘demonstrate through live
testimony . . . the egregiousness of [the] Defendant’s violation”
and that the plaintiffs never received the responsive documents,
and the defendant also vowed to show “absolute compliance” with
the December 21, 2007 order. Id. at 16. (See also Def.’s
Proposed Findings of Fact [Docket #571] at 2 (acknowledging that
defendant’s compliance with the December 21, 2007 compulsion
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order would in part be at issue in the hearing).) The docket
reflects that the parties presented evidence for sixteen days
from January 10 though April 14 of 2008 and closing arguments at
the end of May. Based on the entire record, Moore, 255 F.R.D. at
13, including the evidence introduced at the hearing, the
magistrate judge found that even one year after the order
granting the motion to compel was issued, the defendant had still
not complied, id. at 33, and the defendant’s failure to conduct a
reasonable search for and to produce all responsive documents was
willful given the defendant’s behavior throughout discovery. Id.
at 35-36. Invoking her authority to issue “just orders,” id. at
36, under Rule 37(b)(2) when a party “fails to obey an order to
provide . . . discovery,” the magistrate judge sanctioned the
defendant by ordering that “once Plaintiffs have established a
prima facie case of discriminatory non-promotion, Defendant may
not defend any such prima facie case[.]” Id. at 37. The
magistrate judge also ordered “pursuant to Rule 37 . . . [that
the] Defendant shall pay Plaintiffs their costs, including
reasonable attorneys’ fees, of drafting, filing, and litigating
the Motion [to Compel and] for Sanctions.” Id.
The defendant has filed objections to the magistrate judge’s
ruling, arguing that the magistrate judge erred because the
defendant complied with the order compelling her to conduct a
reasonable search, and because the magistrate judge’s order
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imposed “a severe sanction precluding [the] defendant from being
able to thoroughly defend the merits of this case.” (Def.’s
Obj’ns at 1.) In addition, the defendant objects to the
magistrate judge’s order awarding costs to the plaintiffs,
alleging that no cost sanction is appropriate under Rule
37(b)(2)(C) because the defendant complied with the court’s
order, and that the defendant had already paid for plaintiffs’
costs incurred in filing their motion. (Id. at 44.)
DISCUSSION
Federal Rule of Civil Procedure 72(a) and Local Civil Rule
72.2(b) allow a party to seek reconsideration of a magistrate
judge’s decision in a discovery dispute. “On review, the
magistrate judge’s decision is entitled to great deference unless
it is clearly erroneous or contrary to law, that is, if on the
entire evidence the court is left with the definite and firm
conviction that a mistake has been committed.” Moore v.
Chertoff, 577 F. Supp. 2d 165, 167 (D.D.C. 2008) (internal
quotation marks and citations omitted); see also Graham v.
Mukasey, 247 F.R.D. 205, 207 (D.D.C. 2008); LCvR 72.2(c) (“Upon
consideration of objections filed . . . , a district judge may
modify or set aside any portion of a magistrate judge’s order
under this Rule found to be clearly erroneous or contrary to
law.”).
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I. RULE 37 AUTHORITY
The defendant contends that the magistrate judge erred in
issuing a sanction under Rule 37(b)(2) because the plaintiffs
requested the sanction before the magistrate judge issued her
December 21, 2007 order granting the plaintiffs’ motion to
compel, and because the magistrate judge’s sanction opinion makes
no finding that the defendant violated her December 21, 2007
order. (Def.’s Obj’ns at 29-31.)
The timing of a party’s request for sanctions does not
determine a court’s authority to issue them. The federal rules,
for the most part, do. Plaintiffs complained in a motion to
compel that the defendant had not searched for and produced
documents. The magistrate judge agreed, granted the motion to
compel, and pending a further hearing to determine what if any
additional sanctions were warranted, preliminarily assessed costs
against the defendant, as the magistrate judge was authorized to
do. Fed. R. Civ. P. 37(a)(5). The defendant makes no argument
or showing that the magistrate judge lacked such authority.
For months thereafter, the magistrate judge held a hearing
with a dual focus on additional sanctions for defendant’s
discovery violation found at the December 21, 2007 hearing, and
defendant’s compliance with the compulsion order issued that day.
The defendant neither argues nor demonstrates that the magistrate
judge lacked continuing authority under Rule 37(a)(5) to consider
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whether sanctions beyond the sanction preliminarily issued for
the initial discovery violation were warranted.
The magistrate judge had authority to issue sanctions for
violation of the compulsion order. “A district court may order
sanctions, including a default judgment, for misconduct either
pursuant to Rule 37(b)(2)1 . . . , which authorizes a court to
assess a sanction for violation of a discovery order, or pursuant
to the court’s inherent power to ‘protect [its] integrity and
prevent abuses of the judicial process.’” Webb v. District of
Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (quoting Shepherd v.
1
Under Rule 37(b)(2)(A),
[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. 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).
-8-
Am. Broad. Cos., Inc., 62 F.3d 1469, 1474 (D.C. Cir. 1995))
(alteration in original).
Contrary to the defendant’s assertion, the magistrate did
find that the defendant violated the December 21, 2007 order
requiring the defendant to search for and produce by January 7,
2008 documents that were the subject of the motion. The
magistrate judge expressly concluded that the defendant “fail[ed]
to timely” or reasonably “search for and serve the documents
responsive to Plaintiffs’ requests for production of documents
. . . in accordance with . . . the court’s order compelling
discovery[.]” Moore, 255 F.R.D. at 33. Similarly, the
magistrate judge concluded that the defendant “made a mockery of
. . . the order granting Plaintiffs’ motion to compel[.]” Id. at
35. Given the dual focus of the hearing, the finding that the
defendant failed to comply with the compulsion order required
that the magistrate judge “order the disobedient party . . . to
pay the reasonable expenses, including attorney’s fees, caused by
the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R.
Civ. P. 37(b)(2)(C). As is discussed below, the defendant has
not shown error in the finding that she failed to comply with the
compulsion order, or shown that her failure to comply was
substantially justified. Nor has she shown that the award of
costs was unjust. That the defendant may already have paid the
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costs imposed on December 21, 2007 simply means that the
defendant would not be required to pay again any portion of the
total costs imposed in the 2008 order that has already been paid.
Accordingly, the defendant has not shown that the magistrate
judge lacked authority under Rule 37 to sanction the defendant
for her discovery violation and for failing to comply with the
discovery order.
* * *
The magistrate judge has presided over proceedings involving
discovery disputes in this case since 2005. She has found the
defendant's behavior regarding discovery obligations consistently
over time to range from being lackluster to being recalcitrant
and obdurate. Moore, 255 F.R.D. at 12, 26, 35. She found that
the case was delayed “in large measure by the Defendant’s failure
to provide discovery without the virtually continuous
intervention of the court.” Id. at 33. The enforcement record
is not disputed. The magistrate judge has had to enter against
the defendant no fewer than nine orders compelling the defendant
to provide discovery. Id. at 12. She has denied a protective
order sought by the defendant to limit discovery. Id. The
question here is whether, in light of this history, she had a
basis for concluding that the defendant's recent search efforts
for decisionmakers' documents were not reasonable, and the
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defendant's conduct was willful so as to warrant a severe
sanction.
II. DEFENDANT’S SEARCH EFFORTS
The defendant alleges that the magistrate judge erred in
finding that the defendant failed to conduct reasonable searches
for responsive decisionmaker documents. As a preliminary matter,
the defendant alleges that the magistrate judge erroneously
placed the burden of proof on the defendant, relying on the
heading in the magistrate judge’s opinion stating that the
“[d]efendant failed to adduce credible evidence of any reasonable
search efforts in November and December, 2007 and January, 2008”
as evidence that the burden of proof had shifted. (Def.’s Obj’ns
at 27.) Contrary to the defendant’s objection, viewing the
magistrate judge’s opinion in its entirety, the magistrate judge
did not erroneously place the burden of proof on the defendant.
When a plaintiff alleges that a defendant violated a discovery
order compelling a search by failing to conduct an adequate
search, a plaintiff invariably will call upon the defendant’s
agents to explain what efforts were or were not made to comply
with the court’s discovery order to show that such efforts were
deficient. Once a plaintiff uncovers such evidence that the
defendant failed to search in particular locations or that
individual searches conducted by the defendant’s agents were
inconsistent, it necessarily falls to the defendant, the party
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with superior knowledge of its own records, to show the
reasonableness of its decisions regarding where and how to search
for responsive documents.
Here, the magistrate judge carefully considered all of the
evidence presented by both parties to determine whether the
plaintiffs had carried their burden, as the moving party, to
justify imposing a sanction. If anything, the language of the
heading identified by the defendant as significant –-
“[d]efendant failed to adduce credible evidence of any reasonable
search efforts” -- and the findings within that section of the
magistrate judge’s opinion suggest that the defendant’s
presentation of evidence in its defense actually bolstered the
plaintiffs’ case for sanctions. They do not establish that the
magistrate judge improperly placed the burden of proof on the
defendant.
The defendant also contends that the magistrate judge did
not assess the defendant’s search efforts under the correct legal
standard, namely, reasonableness. (Def.’s Obj’ns at 27.) Under
Rule 26, a party is obligated to make a reasonable effort to
search for and produce documents responsive to the opposing
party’s document requests. See Fed. R. Civ. P. 26(g) Advisory
Comm. Notes (1983 Amendment). “Ultimately, what is reasonable is
a matter for the court to decide on the totality of the
circumstances[,]” and “[t]his standard is heavily dependent on
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the circumstances of each case.” Id. The magistrate judge’s
opinion applies this reasonableness standard, explicitly finding
that the defendant “failed to conduct a reasonable search in
2006” and similarly did not demonstrate “any reasonable search
efforts in November and December, 2007 and January, 2008.”
Moore, 255 F.R.D. at 21-22. The defendant identifies no
misstatement of the reasonableness standard and instead points to
particular factual findings as evidence that the magistrate judge
applied a more stringent standard than reasonableness.
A. 2006 search
The magistrate judge found that the defendant had limited
the search for responsive documents to only three Secret Service
divisions -- Personnel, EEO, and Management and Organization –-
and had not “searched the records of any decision-maker” stored
outside of these divisions prior to the December 21, 2007 order.
(Id. at 21.) As the magistrate judge noted, the defendant
acknowledged that it “could have gone to the individual
supervisors . . . within the Secret Service and queried them
personally about what recommendation materials they may have
[had] that would [have been] responsive to the Plaintiffs’
request.” (Id. (quoting May 29, 2008 Hrg. Tr. at 32) (internal
quotation marks and alterations omitted).) The defendant
contends that there was no evidence to support the magistrate
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judge’s conclusion that a reasonable search needed to include
searches for documents outside of the three searched divisions.
The plaintiffs presented evidence demonstrating the likely
existence of responsive documents in the records of other
decisionmakers and recommenders in the promotion process, namely
sworn testimony from Secret Service agents indicating that
promotion recommendations were communicated through e-mail. (See
Pls.’ Opp’n to Def.’s Obj’ns at 16 n.7; Pls.’ Proposed Findings
of Fact [Docket #568] ¶¶ 299-301 (collecting deposition
testimony).) The defendant concedes that there was testimony
from Secret Service agents that “‘it [was] possible’ that field
offices may have [had] additional promotion-related information
not sent to the Personnel Division, and that promotion-related
information may consist of a recommendation by a SAIC [Special
Agent-in-Charge] or by a first-level supervisor to an SAIC.”
(Def.’s Obj’ns at 12.) Notably, the defendant points to no
evidence presented to the magistrate judge that demonstrated that
responsive documents likely would not have been located within
the records of these other decisionmakers and recommenders. In
light of the plaintiffs’ evidence that responsive documents
regarding promotion recommendations existed outside of the three
searched divisions and demonstrating the importance of documents
related to the promotion recommendations to the issues in this
action, the defendant has not shown that it was clearly erroneous
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for the magistrate judge to conclude that, in the circumstances
of this case, a reasonable search for documents responsive to the
plaintiffs’ request must include searches of the records of
individual decisionmakers located outside of the three divisions
searched.
B. 2007 and 2008 searches
The magistrate judge found that the defendant failed to
conduct a reasonable search in November and December of 2007 and
January of 2008, partly in violation of the order granting the
plaintiffs’ motion to compel a reasonable search of the records
of decisionmakers for responsive documents. In so finding, the
magistrate judge reasoned that the defendant provided
insufficient search instructions to the approximately 182
supervisors who were tasked with searching for responsive
documents in response to the December 21 order. Moore, 255
F.R.D. at 21-22. The magistrate judge also found that the search
efforts described by the defendant’s own witnesses -- SAIC
Bryant, Resident Agent-in-Charge (“RAIC”) Gavin, and RAIC Mays --
revealed that these individuals conducted inconsistent and
inadequate searches for documents in response to the December 21
order. In addition, the magistrate judge found that the
testimony of Inspector Hunnicutt, who was entrusted to assure an
adequate search, lacked candor, was not credible and could not be
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relied upon to explain the defendant’s search efforts. Id. at
26-27.
1. Search instructions
The magistrate judge found that the search instructions
given to the individual agents charged with carrying out the
defendant’s search for documents in November and December of 2007
were ambiguous and deficient. After the plaintiffs filed their
motion to compel, Secret Service Inspector Arthur Kuhn sent an e-
mail on November 5, 2007 to approximately 182 supervisors at the
GS-15 level or higher directing each individual
to search locations including “personal files,” “office
files,” and “the office files for which [they] were
previously assigned when involved in the decision-
making process[]” for “notes, letters, memoranda, e-
mails (both paper and electronically saved), or any
other paper documents that specifically relate to the
‘selection decisions’ for GS-14 and GS-15 promotions
and reassignments from 1991 to 2005.
Id. at 18 (quoting Def.’s Evid’y Hrg. Ex. 1) (alterations in
original). After the magistrate judge granted the plaintiffs’
motion to compel searches, “[o]n December 26, 2007, the Secret
Service’s Office of the Chief Counsel forwarded an e-mail to ‘all
Assistant Directors [ADs], Special Agents in Charge [SAICs],
Resident Agents in Charge [RAICs], and Division Chiefs’ directing
a search ‘of their offices, including all personal and office
files, for any paper documents related to decision-making or
recommendations for bids of selections to any GS-14, GS-15, or
SES Special Agent position from 1991 to 2005.’” Id. (quoting
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Def.’s Evid’y Hrg. Ex. 14 at 1). This e-mail was sent to
approximately 156 agents. Id.
The magistrate judge found that the ambiguity in the
defendant’s instructions “became evident as Defendant’s own
witnesses testified regarding their respective interpretations of
the terms ‘personal files,’ ‘office files’ and ‘office’ in the
context of the e-mail inquiries.” Id. at 16 n.18 (listing
several agents’ inconsistent interpretations of the files they
were to search in response to the defendant’s two e-mail
inquiries). For example, the magistrate judge discussed the
testimony of Agent Faron Paramore, SAIC of the Director’s Office,
who testified that he originally thought the November 5, 2007
email required a physical search of only his personal office, and
searched the files of the entire Director’s Office only after
receiving clarification from the Secret Service’s Chief Counsel’s
office about the intended scope of the requested search. Id. at
22-23. Nevertheless, the defendant used the same ambiguous term
“office files” in the December 26, 2007 email without further
instructions to clarify for everyone else what “office files”
meant. In addition, the magistrate judge found that defendant’s
search instructions failed to adequately inform the e-mail
recipients, including Inspectors Kuhn and Hunnicutt, whose “role
[it was] to receive documents located during the searches and to
answer any questions posed by the recipients of the e-mail,” of
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the claims and defenses involved in this case even though the
plaintiffs’ document requests sought documents “relating . . . in
any way to the claims and defenses raised in this case[.]” Id.
at 23 (internal quotation marks omitted).
The defendant disputes the magistrate judge’s conclusion
that the defendant’s search instructions were ambiguous, arguing
that “however a witness may have initially interpreted [the
search terms], all the witnesses cited [by the magistrate judge]
testified that they ultimately understood that they were to
search all of the office under their supervision where responsive
records might be located.” (Def.’s Obj’ns at 14.) With
testimony from only the small sample of the approximately 182
recipients of the November 2, 2007 e-mail and 156 recipients of
the December 26, 2007 e-mail, it was not error to infer from the
different initial interpretations that there was ambiguity in the
search instructions. The defendant has pointed to no evidence
before the magistrate judge that demonstrates that the defendant
communicated with all of the e-mail recipients to ensure that
they had not adopted an erroneous interpretation of the scope of
the search requested and had not certified completion of a search
based on an erroneous interpretation of what was required. In
addition, as is discussed below, the testimony of the agents
regarding their search efforts in response to the 2007 e-mail
search instructions revealed that they conducted inconsistent
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searches and, in some instances, inadequate searches. Thus,
contrary to the defendant’s objection, it was not error to
conclude from the evidentiary record that the defendant’s search
instructions did not sufficiently inform recipients of what
efforts needed to be made to satisfy the defendant’s obligation
to conduct a reasonable search.
The magistrate judge found that the defendant’s search
instructions were deficient for failing to include express search
references to appropriate index numbers or off-site storage,
including the Federal Records Center. Moore, 255 F.R.D. at 23-
24. The defendant argues that the plaintiffs did not prove that
the agents needed such specific search instructions. (Def.’s
Obj’ns at 15-16.) However, the plaintiffs need not have proven
that the agents charged with searching their offices needed such
a directive. Inspector Kuhn testified that the Secret Service
filing system designates office files regarding promotion of
special agents by a particular index number, and that responsive
documents could be stored at the Federal Records Center, but he
did not know if anyone searched there. Moore, 255 F.R.D. at 23,
30. The defendant has pointed to no evidence demonstrating that
the administrative index number and documents stored off-site
were irrelevant to the plaintiffs’ request. It was enough for
the magistrate judge to note the omission from search
instructions of obvious locations of potentially responsive
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documents in assessing whether the defendant’s omissions were
indicative of a chronically and willfully anemic approach to
discovery obligations warranting a significant sanction.
The magistrate judge found that Inspectors Kuhn and
Hunnicutt were not adequately informed about what constitutes a
document responsive to the plaintiffs’ requests. The defendant
counters that these inspectors were tasked with only gathering
information on the defendant’s searches and that because of their
minimal role, “[t]he fact that the inspectors . . . were not
involved in determining whether a document was responsive to
plaintiffs’ requests does not indicate that defendant’s
instructions . . . were in any way deficient, or that the
searches they performed were in any way inadequate.” (Def.’s
Obj’ns at 15.) While it is far from clear that the evidentiary
record supports the defendant’s characterization of Kuhn and
Hunnicutt as mere information-gatherers, the magistrate judge
also found that the e-mail recipients -- who were tasked with
searching –- were inadequately informed about what constituted a
responsive document. Moore, 255 F.R.D. at 23. The defendant has
not identified evidence in the record demonstrating that all e-
mail recipients were adequately informed of the types of
responsive documents that should have been produced in response
to the e-mail inquiry. Thus, even accepting the defendant’s
argument that Kuhn and Hunnicutt had a minimal role that did not
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require them to have knowledge of what constituted a responsive
document, such an argument does not undermine the magistrate
judge’s conclusion that there was a widespread failure to
instruct e-mail recipients appropriately.
2. Inconsistent search efforts
In reaching the conclusion that the defendant failed to
conduct a reasonable search in response to the December 21, 2007
order, the magistrate judge considered the search efforts of four
of the defendant’s agents: SAICs Paramore and Bryant and RAICs
Gavin and Mays. The magistrate judge found that the testimony of
these four agents “exposed the widely varying extent of the
searches conducted[,]” and that Bryant, Gavin, and Mays’
testimony revealed that they conducted inadequate searches for
responsive documents, not reasonable ones consistent with the
defendant’s obligation under the federal rules. Id. at 24.
a. Bryant
The magistrate judge found that Bryant “failed to search any
of the administrative files of the Buffalo field office in
November, 2007.” Id. She found that in response to the
November, 2007 e-mail inquiry, Bryant asked his administrative
supervisor if any files would contain any responsive information,
and his administrative supervisor –- without conducting a search
of any files –- indicated that the information he was seeking
would not be in “‘an official capacity in [the] file room.’” Id.
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(quoting Mar. 6, 2008 Evid’y Hrg. Tr. at 14-15) (alteration in
original). The magistrate judge further found that Bryant
believed that his inquiry of the administrative supervisor
constituted an adequate search. Id. She also found that beyond
questioning the administrative supervisor, Bryant “merely looked
at the personal files maintained in his desk, his calendar and e-
mail account . . . [but] did not search in closets, credenzas,
safes, vaults, off-site storage, or file cabinets other than the
one containing his own personal documents” and did not ask other
staff members to search for responsive documents. Id. (internal
citation omitted).
The defendant alleges that Bryant reasonably relied upon
information provided by the administrative supervisor who had
worked in the office for over twenty-eight years and who had
searched the Buffalo office records in May 2007 to prepare for an
unrelated inspection. (Def.’s Obj’ns at 17-18.) Some reliance
by Bryant upon his administrative supervisor to help conduct a
search was not the problem. While the defendant has shown that
the administrative supervisor had general familiarity with the
files in the Buffalo office based upon her earlier unrelated
review of office records, the defendant has not shown that the
administrative supervisor ever reviewed office files for the
purpose of identifying documents responsive to the November and
December e-mail inquiries.
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In addition, Bryant testified that he made promotion
recommendations via personal e-mail but that where Bryant
searched produced no hard copies of recommendation e-mails.
Moore, 255 F.R.D. at 24-25. The magistrate judge also noted that
despite the efforts described, Bryant signed “Paper Documents
Search Certification form[s]” on November 6, 2007 and December
26, 2007, “indicating that he performed thorough searches of his
office.” Id. at 24 n.22. This record reflects no error in the
magistrate judge finding that neither Bryant nor his
administrative supervisor actually performed a thorough or
reasonable search for documents in response to the November 2007
inquiry.
b. Gavin
The magistrate judge found that Gavin largely relied upon
his resident administrative manager’s word that there would be no
promotion documents or promotion-related materials in the
Wilmington office. However, the administrative manager did not
conduct any confirming search for responsive documents. Id. at
25. Gavin also asked his staff whether they had any promotion-
related materials in their office space, and took their word when
they all said “no” without even confirming whether they had
conducted a search for such materials and without conducting such
a search himself. Gavin did look in a “small two-drawer filing
cabinet in the resident administrative manager’s office”
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containing administrative filings and searched simply “by looking
at the file folder labels affixed to each file” rather than
opening them. Id. He also searched his own personal folder
where he kept activity reports, travel vouchers and other
miscellaneous documents, and looked in the closet and cabinets
when he “happened to be in the closet” or “happened to look in
cabinets.” Id. at 25-26. However, Gavin “did not specifically
look for notes, notebooks, memos, calendar entries, or print-and-
save e-mails in response to the December 26, 2007” e-mail
inquiry. Id. at 26. Gavin, nevertheless signed a certificate
that a thorough search was conducted.
Whatever the likelihood was of finding responsive documents,
virtually no search was conducted, much less a thorough one. The
magistrate judge found that RAIC Gavin’s search efforts were
“lackluster.” Id. The record bears out that characterization,
and was fair support for the magistrate judge’s negative
assessment of the reasonableness of the defendant’s search.
c. Mays
The magistrate judge found that in response to the December
2007 e-mail, Mays searched the office’s administrative files by
flipping through pages of those file folders that he thought from
their labels would contain responsive documents. Id. Mays
testified that he also “forwarded an e-mail to the members of his
staff, asking them to conduct a search of their offices” and
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reply with responsive materials. Id. However, none responded
to him and he never spoke with them regarding their search
efforts. Thus, Mays “could not testify regarding whether [his
staff members] conducted a search or the scope of any performed
search.” Id. Nevertheless, Mays, too, signed a form and
certified that a thorough and reasonable search was performed.
The defendant contends that the search was reasonable enough
since Mays testified “that when he gives an order to his staff he
expects them to comply.” (Def.’s Obj’ns at 20.) However, it was
not error for the magistrate judge to find problematic that Mays
certified that a reasonable search was performed without having
surveyed his staff members to determine “the scope of any
performed search[,]” Moore, 255 F.R.D. at 26 (emphasis added), or
to factor this search in with the remaining evidence in assessing
whether the defendant’s overall performance warranted a
substantial sanction.
3. Inspector Hunnicutt’s credibility
The defendant objects to the magistrate judge’s reliance on
Inspector Hunnicutt’s credibility as evidence of whether or not a
reasonable search was performed, contending that Hunnicutt’s
testimony was irrelevant because Hunnicut was tasked with only
“document[ing] defendant’s search efforts,” and was not “in
charge of searching for documents . . . or play[ing] any role in
the actual searches.” (Def.’s Obj’ns at 21-22.) Thus, the
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defendant contends, “[a]lthough defendant’s efforts through
Inspector Hunnicutt to gather evidence about how the search was
performed may have been flawed, it does not mean that a
reasonable search was not performed.” (Id. at 22.) The
defendant has not shown error in the magistrate judge’s finding
that Hunnicutt’s testimony lacked candor and credibility, Moore,
255 F.R.D. at 27, or her reliance on such finding as evidence in
assessing whether a reasonable search was performed in response
to her order or whether the defendant’s overall conduct was
willful. Hunnicutt was presented as the person who was
responsible for keeping track of the Secret Service’s search
efforts and had knowledge regarding what efforts were undertaken
in response to the court’s December 21 order. For such an
important witness to testify without credibility or candor about
what search efforts were made can be probative of the defendant’s
good faith and easily lead to grave skepticism in making that
assessment.
Overall, considering the magistrate judge’s findings
regarding the ambiguity in the defendant’s search instructions,
the inconsistent and inadequate search efforts of agents Bryant,
Gavin, and Mays, and Inspector Hunnicutt’s failure to credibly
explain the defendant’s search efforts, it was not clearly
erroneous for the magistrate judge to find that the defendant
violated the December 21, 2007 order compelling the defendant to
-26-
conduct a reasonable search for paper documents. Nor was there
error in finding that this evidence in light of the defendant’s
chronic discovery misconduct during the pendency of this case
warranted a severe sanction.
III. PRECLUSION SANCTION
The magistrate judge found that the defendant’s violation of
the order compelling a reasonable search was willful, and ordered
that “once Plaintiffs have established a prima facie case of
discriminatory non-promotion, Defendant may not defend any such
prima facie case[.]” Id. at 37. The defendant alleges that the
magistrate judge erred in imposing this sanction because the
circumstances of this case are not sufficiently egregious to
warrant such a severe sanction. The defendant alleges that
either no sanction is warranted or lesser sanctions of reopening
discovery, allowing plaintiffs to supplement their motion for
class certification, and a division of costs for adjudicating the
plaintiffs’ motion to compel are more appropriate in the
circumstances. (See Def.’s Obj’ns at 44-45.)
The “central requirement of Rule 37 is that any sanction
must be just,” and the “choice of sanction should be guided by
the concept of proportionality.” Bonds v. District of Columbia,
93 F.3d 801, 808 (D.C. Cir. 1996) (internal quotation marks
omitted). Bonds instructs that before imposing a severe,
litigation-ending sanction that approaches a default judgment or
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denies a party a fair trial on the merits, a district court must
“consider whether lesser sanctions would be more appropriate for
the particular violation” because the judicial system favors
disposition of cases on the merits. Id. In considering whether
a severe sanction “rather than a milder disciplinary measure” is
appropriate, a court should consider “the effect of a [party’s]
contumacious conduct on the court’s docket, whether the [party’s]
behavior has prejudiced the [opposing party] and whether
deterrence is necessary to protect the integrity of the judicial
system.” Id. Then, if imposing a severe sanction, the court
should “either make a finding supported by the record that the
more severe sanction is necessary to avoid prejudice to [the
opposing party] or to the court’s calendar . . . or -- if the
sanction is based only on deterring future discovery misconduct
-- the more severe sanction must be supported by a finding of
flagrant or egregious misconduct by the” sanctioned party.2 Id.
at 809.
Bonds also cautions that a preclusion sanction may be so
severe as to be litigation-ending, even if it is not described as
such. The district court in Bonds precluded the defendant “from
offering any fact witnesses at trial as a discovery sanction” for
2
In appropriate situations, a court also may find that a
severe sanction is necessary to prevent some benefit to the
sanctioned party. Bonds, 83 F.3d at 809. The magistrate judge
did not base the sanction at issue on any finding that such a
sanction was necessary to avoid a benefit to the defendant.
-28-
“failing to respond in a timely manner to an interrogatory
requesting the names of all persons with knowledge of relevant
events regarding the class action and then providing an
inadequate response.” Id. at 803-04. Although recognizing that
“the [broad] preclusion order did not operate with such assured
effect as a default judgment[,]” the court of appeals nonetheless
found that such a sanction “approach[ed] a default judgment in
its severity.” Id. at 808-09. The court explained that
“resolution of the plaintiffs’ sexual harassment and retaliation
claims was likely to depend on the credibility of conflicting
witnesses and the jury’s evaluation of [the defendant’s]
employees’ motives.” Id. at 808. As a result, while it was
“true that the [defendant] could still introduce documentary
evidence and expert testimony, counter-designate portions of
deposition testimony introduced at trial, cross-examine the
plaintiffs’ witnesses, and make opening and closing arguments[,]”
the preclusion order was still a severe sanction resulting in a
“one-sided trial” where the defendant was left “with little
ability to contest the plaintiff’s claims.” Id. at 808-09. Upon
reviewing the district court’s finding of prejudice to the
plaintiffs and the court, and the need for deterrence, the Bonds
court found that the district court’s findings were insufficient
to persuade the court that lesser alternative sanctions would
have been ineffective. Id. at 813.
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In imposing the sanction at issue, the magistrate judge
intended that the chosen sanction neither be “‘litigation-
ending,’” nor “‘approach[] a default judgment’ . . . nor den[y]
Defendant the right to a trial on the merits.” Moore, 255 F.R.D.
at 32 n.34, 33 n.36, 37 (quoting Bonds, 93 F.3d at 808) (first
alteration in original). Nonetheless, recognizing the
defendant’s “concerns that the sanction . . . is akin to a
default,” id. at 33 n.36, the magistrate judge applied the Bonds
framework when considering whether to impose a severe sanction
and made findings that the defendant’s conduct caused prejudice
to the plaintiffs and disrespected the court, and there was a
need to deter the defendant’s willful violation.
A. Prejudice to the plaintiffs
The magistrate judge held that the defendant’s “failure to
timely search for and serve the documents responsive to
Plaintiffs’ requests for production of documents . . . has
prejudiced Plaintiffs’ ability to conduct meaningful discovery
and to prepare to address the merits of their claims.”3 Moore,
3
The magistrate judge also noted that the defendant argued
that the plaintiffs premised their argument “‘on the assumption
that there is a huge cache of responsive paper recommendation
documents previously undisclosed by defendant that is essential
to [P]laintiffs’ case.’” Id. at 34 (quoting Def.’s Proposed
Findings ¶ 34, at 90) (alteration in original). The magistrate
judge expressly rejected the defendant’s claim that the
plaintiffs’ advanced this argument and disavowed making any
finding with respect to the “volume of withheld documents[,]”
reasoning that volume of withheld documents is not dispositive
when determining an appropriate sanction under Rule 37. Id.
-30-
255 F.R.D. at 33. In reaching this conclusion, the magistrate
judge found that the defendant “failed even to commence a
reasonable search for the full extent of the documents responsive
to [the plaintiffs’ requests] until sixteen months after the
requests were served,” and that even a year after she entered her
compulsion order, she could not find that “a reasonable search
for the full extent of the responsive documents ha[d] been
undertaken.” Id. at 33. Moreover, the magistrate judge found
that the plaintiffs have been “‘required to waste time, money,
and effort in pursuit of cooperation[.]’” Id. (quoting Gallina
v. Wyandotte Police Dep’t, No. 4:07-CV-12640, 2008 WL 5090551, at
*2 (E.D. Mich. Nov. 26, 2008)). The defendant objects to the
magistrate judge’s finding that the plaintiffs have suffered
prejudice, contending that the magistrate judge gave insufficient
consideration to “whether the putative undisclosed documents must
be essential, important, or even relevant to plaintiffs’ claims”
and that, as evidenced by the plaintiffs’ filing of their motion
for class certification, there was no “evidence that plaintiffs
have been unable to pursue their claims with the mountains of
discovery produced by defendant.” (Def.’s Obj’ns at 35, 37.) In
addition, the defendant alleges that the magistrate judge failed
to cite evidence supporting the conclusion that the plaintiffs
have been required to waste time, money, and effort. (Id. at
36.)
-31-
First, as a matter of law, a court does not examine the
merits of a case when determining whether to certify a class
under Rule 23. Wagner v. Taylor, 836 F.2d 578, 587 (D.C. Cir.
1987). The fact that the plaintiffs have been able to file a
class certification motion does not demonstrate that the
defendant’s violation of the court’s order compelling a search
did not prejudice the plaintiffs’ ability to conduct discovery
and prepare their case on the merits.
Moreover, regarding the defendant’s allegation that the
magistrate judge gave insufficient consideration to the
plaintiffs’ need for undisclosed documents, the magistrate judge
considered and found that the plaintiffs carried their burden of
demonstrating that there are responsive decisionmaker documents
not produced that are relevant to the plaintiffs’ preparation of
the merits of their case. Moore, 255 F.R.D. at 34. There was a
substantial evidentiary basis for the finding that undisclosed
responsive documents regarding decisionmakers’ promotion
decisions existed. Inspector Kuhn declared that while the agency
does not generally consider as official records that the agency
maintains as business records individual emails that individual
supervisors send bearing promotion recommendations (Kuhn Decl.
¶ 3 (Doc. # 498-15)), he testified that he knew from personal
experience that individual supervisors do email such
recommendations to each other. (Tr. of Jan. 10, 2008 Evid’y Hrg.
-32-
at 184-85.) Nine of those very supervisors testified that they
sent (Pls.’ Evid’y Hrg. Exhs. 49 at 123-24, 52 at 53, 59 at 106,
65 at 93-95; Tr. of Mar. 6, 2008 Evid’y Hrg. at 33 (testimony of
Dunlap, Carey, Pickle, Dowling, Bryant)) or received (Pls.’
Evid’y Hrg. Exhs. 50 at 90, 58 at 187, 63 at 222, 64 at 55, 66 at
48-49 and 233 (testimony of Spriggs, Riggs, Truscott, Samway,
Bauer)) such recommendations by email. A critical question in
any discrimination action is whether the alleged disparity
between plaintiffs and other similarly-situated individuals or
groups was the result of unlawful discrimination. See Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir.
2008). Evidence demonstrating individual decisionmakers’ reasons
for promotions or nonpromotions is highly relevant to the
plaintiffs’ individual and potential class claims. While a
pattern and practice class action relies on statistics to
demonstrate the class-wide injury, anecdotal evidence is
permitted and useful to bring “the cold numbers convincingly to
life.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,
339 (1977); see also Arnold v. U.S. Postal Serv., 863 F.2d 994,
999-1000 (D.C. Cir. 1988); Segar v. Smith, 738 F.2d 1249, 1277-78
(D.C. Cir. 1984); Valentino v. U.S. Postal Serv., 674 F.2d 56,
71-72 (D.C. Cir. 1982). Here, the plaintiffs’ document requests
sought to capture the reasons for particular decisions to promote
or not promote agents which are highly relevant to establishing
-33-
an employer’s discriminatory motive. Given that the defendant
has failed to fully comply with the obligation to locate and
produce these relevant decisionmaker documents, and the finding
that this failure continued a pattern and practice of obduracy in
discovery production, the magistrate did not err in finding that,
despite the significant volume of discovery already produced, the
plaintiffs have been prejudiced by the defendant’s failure to
search adequately for and produce decisionmaker documents.4
Similarly, the defendant’s suggestion that the magistrate judge
had no basis to conclude that the plaintiffs wasted time, money,
and effort in pursuit of the defendant’s cooperation lacks merit.
The plaintiffs filed and successfully litigated a motion to
compel the defendant to conduct reasonable searches for
documents, and yet, as is discussed above, the plaintiffs still
have not received the defendant’s full cooperation. The
plaintiffs engaged in months of inevitably costly discovery
efforts lacking the documents that could have sharpened or sped
their inquiries. The magistrate judge’s finding that the
4
Further, an ability to assess the volume and value of
documents that the defendant has not yet adequately searched for
and produced cannot otherwise stand in the way of assessing the
degree of prejudice to the plaintiffs. It would not be
inappropriate to resolve against the defendant any uncertainty
regarding the volume and value of these documents since it was
the defendant’s failure to adequately search for and produce all
responsive documents that impeded full evaluation of them.
-34-
defendant’s conduct has caused prejudice to the plaintiffs is not
faulty.
B. Deterrence and impact on court
The magistrate judge concluded that the defendant “has made
a mockery of Rule 34, the case management orders of the court,
the order granting Plaintiffs’ motion to compel, and the
evidentiary hearing.” Moore, 255 F.R.D. at 35. The magistrate
judge found that the defendant’s conduct at the evidentiary
hearing constituted “substantial and prejudicial obduracy[,]”
amounting to a willful, bad faith attempt to “justify [the
defendant’s] production of only those documents [she] was
inclined to produce.” Id. Specifically, the magistrate judge
found that Hunnicutt’s testimony lacked credibility and candor.
The magistrate judge also found that “the court’s ability to
conduct an orderly and efficient evidentiary hearing was further
compromised by Defendant’s inability to call all of the
witnesses” who were expected because at least one witness decided
to circulate an e-mail with a press account about Hunnicutt’s
testimony “to other witnesses whose names were included on
Defendant’s witness list.”5 Id. at 29-30, 35.
5
When discussing imposing a sanction to avoid “prejudice to
the court,” the D.C. Circuit has focused on potential prejudice
to the court’s calendar -- that is, where, absent an appropriate
sanction, a party’s misconduct would “put an intolerable burden
on a district court by requiring the court to modify its own
docket and operations” and require the court to “expend
considerable judicial resources in the future in addition to
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The defendant disputes the finding of an injury to the court
because the defendant was not required to document her searches
and because the witnesses who were not called were not identified
by the magistrate judge or the plaintiffs as necessary to the
evidentiary hearing. (Def.’s Obj’ns at 37-38.) While the
defendant was not obligated to document her searches in any
particular manner, a party vowing to demonstrate her absolute
compliance with a court order should carry some responsibility to
refrain from presenting testimony lacking candor. As is noted
above, the defendant has shown no fault with the finding that
Hunnicutt lacked candor and credibility. Regarding the
defendant’s objection to the magistrate judge’s finding that the
court was harmed by the defendant’s disregard of the rule on
witnesses, defense counsel conceded that she did exclude
witnesses who had been inappropriately exposed to press coverage
of the evidentiary hearing. Moore, 255 F.R.D. at 29 (quoting
Feb. 25 Evid’y Hrg. Tr. at 266-68). Contrary to the defendant’s
unsupported objection, the magistrate judge had a reasonable
those it has already wasted[.]” Shea v. Donohoe Constr. Co.,
Inc., 795 F.2d 1071, 1075-76 (D.C. Cir. 1986). While the
magistrate judge characterized as evidence of “prejudice to the
judicial system” her findings that the defendant willfully made a
mockery of the federal rules and the court’s orders and
interfered with the court’s ability to conduct an efficient
evidentiary hearing, these findings are as appropriately
considered as reasons for sanctioning the defendant under a
“deterrence and punishment” rationale -- that is, where there is
a “need to sanction conduct that is disrespectful to the court
and to deter similar misconduct in the future.” Id. at 1077.
-36-
basis to infer that the defendant’s management of potential
witnesses compromised the court’s ability to conduct an efficient
hearing because the defendant admitted that her presentation of
evidence was affected by her agents’ inappropriate exposure to
press reports.6 Accordingly, it was not error for the magistrate
judge, having found that the defendant presented a witness who
lacked credibility and failed to prevent contamination of
potential witnesses, to conclude that the defendant’s conduct was
disrespectful to the court.
In finding a need to deter similar misconduct in the future,
the magistrate judge found a severe such sanction was necessary
because a “‘lesser sanction may also yield similar misconduct by
other litigants by indicating that flagrant violations will yield
only minor sanctions.’” Moore, 255 F.R.D. at 35 (quoting Perez
v. Berhanu, 583 F. Supp. 2d 87, 91 (D.D.C. 2008)). In assessing
6
In discussing the defendant’s alleged violations of the
rule on witnesses, the magistrate judge concluded that the
defendant “failed to instruct the potential witnesses to refrain
from reading press reports of testimony elicited during the
hearing[,]” and that after learning that an agent transmitted a
newspaper article to potential witnesses, “counsel for the
Defendant saw fit to do absolutely nothing[.]” Moore, 255 F.R.D.
at 30. It is apparent, though, that the magistrate judge did not
mean that defense counsel’s efforts to comply with the rule on
witnesses were non-existent. The magistrate judge accepted as
credible the testimony of Mays and Gavin who each explained that
he did not read the e-mailed article regarding Hunnicutt’s
testimony because defense counsel had instructed him not to read
public accounts of the hearing. Id. at 28-29. In addition, the
magistrate judge found that defense counsel made efforts to
investigate the scope of Mays’ and Gavin’s exposure to the e-
mailed article. Id. at 29.
-37-
what sanction would be just and proportional to remedy the harms
caused by the defendant’s violation and to deter future discovery
misconduct, the magistrate judge observed that the court’s
previous attempts to remedy defendant’s conduct through lesser
corrective actions, including prior orders compelling discovery,
monetary sanctions, and a sanction precluding the defendant from
using certain evidence not timely disclosed to the plaintiffs,
proved insufficient to deter the defendant from “disregard[ing]
[her] discovery obligations.” Id. at 36.
The defendant objects to the magistrate judge’s reliance on
the multiple lesser sanctions previously imposed by the court as
justification for the need for the preclusion sanction at issue.
The defendant contends that because her objections to two of the
three previous sanction orders were pending at the time the
magistrate judge issued the sanction at issue, it was “manifestly
unfair and premature for the Magistrate Judge to sanction [the]
defendant based on rulings” still subject to review by the
district court. (Def.’s Obj’ns at 39.) A pending review of
prior lesser sanctions does not obligate a magistrate judge to be
blind to prior findings of misconduct and whether her imposition
of previous, lesser sanctions was insufficient to deter the
defendant’s subsequent discovery misconduct. The defendant’s
argument is of particularly little weight here since the
magistrate judge’s two previous sanctions orders, although
-38-
slightly modified, have been largely upheld in substance. See
Moore v. Napolitano, Civil Action No 00-953 (RWR/DAR), 2009 WL
2450280 (D.D.C. Aug. 7, 2009).
C. Proportionality/no lesser alternative
In concluding that the instant preclusion sanction is
“‘just,’ and is ‘guided by the concept of proportionality between
offense and sanction[,]’” the magistrate judge “considered the
extent to which ‘less dire alternatives have been explored
without success’ or would obviously prove futile[.]” Moore, 255
F.R.D. at 36 (quoting Bonds, 93 F.3d at 808) (internal quotation
marks omitted). The magistrate judge determined that the instant
preclusion sanction was “not ‘litigation-ending[,]’” but
nonetheless significant enough to remedy the defendant’s
violation. Id. (quoting Bonds, 93 F.3d at 808). The defendant
alleges that the magistrate judge erred in imposing a severe
sanction akin to a litigation-ending default judgment, and
alleges that an appropriate sanction, if any, would be a “re-
opening of discovery, allowing plaintiffs to supplement their
motion for class certification, and a division of costs for
adjudicating plaintiffs’ motion to compel.” (Def.’s Obj’ns at
44-45.)
For all of the reasons discussed above, including the
defendant’s history of protracted recalcitrance during discovery,
the failure of previous, lesser sanctions to deter subsequent
-39-
violations, the resulting prejudice to the plaintiffs, and the
need to deter the defendant’s willful conduct, the magistrate
judge had an adequate basis for rejecting the defendant’s
suggestion that the appropriate sanction would be to give the
defendant yet a third opportunity to comply with her latest
discovery obligations, and had an adequate basis for imposing a
significant sanction in response to the defendant’s violation of
the order compelling a reasonable search for responsive
documents. Her conclusion was, in essence, that enough is
enough. That conclusion was fair at this stage in the
litigation. Since the magistrate judge’s intent was that the
preclusion sanction imposed not be litigation-ending, the
sanction will be construed not to prevent the defendant from
offering any defense to any prima facie case of discriminatory
non-promotion. Rather, the defendant will be precluded from
offering any legitimate, nondiscriminatory reason to rebut any
prima facie case of disparate treatment discriminatory
nonpromotion of the individual named plaintiffs.
Construing the sanction in this manner tailors a
proportional remedy to the alleged harm, and does not produce an
unsupported litigation-ending sanction. It is the individual
named plaintiffs whose time, energy and resources have been most
frustrated by the defendant’s discovery misconduct and most
compromised in the effort to gather anecdotal evidence in support
-40-
of their discriminatory nonpromotion allegations. And as Bonds
recognized, defendants would have multiple methods available for
mounting a defense against the individual named plaintiffs’
promotion discrimination claims: denying the factual accuracy of
plaintiffs’ evidence, attacking the credibility of plaintiffs’
witnesses under Federal Rules of Evidence 602, 607, 608, 609, 613
and others; attacking the sufficiency of plaintiffs’ prima facie
evidence in opening statements and closing arguments and under
Federal Rule of Civil Procedure 50, and others. Unlike the Bonds
plaintiffs, however, plaintiffs here present a protracted history
of repeated discovery misconduct by a defendant warranting a
severe preclusion sanction.
Moreover, in a pattern and practice case, a plaintiff class
seeking to carry its prima facie burden of offering evidence
adequate to create an inference of discrimination will usually
provide statistical evidence showing a disparity between the
position of the class members and other similarly-situated
individuals, and may also present anecdotal evidence to show that
the statistical disparity is the result of unlawful
discrimination. Segar, 738 F.2d at 1267; Arnold, 863 F.2d at
999-1000. Once plaintiffs have established their prima facie
case of discrimination, there are two ways an employer-defendant
can seek to rebut the plaintiffs’ case. First, “[t]he employer
can endeavor to refute the plaintiffs’ claim that a disparity
-41-
exists” by “[c]hallenging the accuracy or significance” of the
plaintiffs’ statistical showing. Segar, 738 F.2d at 1267-68.
Alternatively, a defendant can present an “explanatory defense”
“to show that any observed disparities between plaintiffs and
[another] group did not result from discrimination violative of
Title VII.” Id. at 1267-68. Under a disparate treatment theory,
the defendant will offer “a legitimate, nondiscriminatory
explanation for the disparity” such as “some additional job
qualification . . . that the plaintiff class lacks.” Id. at
1268. Under a disparate impact theory where the plaintiffs have
linked the alleged disparity to a particular business practice,
the defendant will seek to prove “the business necessity of the
practices causing the disparity.” Id. at 1270. Although the
defendant will be precluded from offering a legitimate,
nondiscriminatory reason for any discriminatory nonpromotion that
the individual named plaintiffs establish that they suffered, she
may defend against the plaintiffs’ statistical showing by either
attacking the accuracy of the plaintiffs’ statistical showing or
presenting competing statistical evidence to refute the
significance of the plaintiffs’ showing.
CONCLUSION AND ORDER
Based on all of the evidence presented, it was not clearly
erroneous for the magistrate judge to find that the defendant
violated the discovery order compelling the defendant to conduct
-42-
a reasonable search for and produce responsive documents.
Furthermore, the defendant has shown neither that the magistrate
judge erred in imposing sanctions under Rule 37 for the
defendant’s failure to reasonably search for and produce
responsive documents nor that the magistrate judge’s imposition
of costs was unjust. The preclusion sanction will be construed
to preclude the defendant from offering any legitimate, non-
discriminatory reason to rebut any prima facie case of disparate
treatment discriminatory nonpromotion of the individual named
plaintiffs. Accordingly, it is hereby
ORDERED that the defendant’s objections [605] to the
magistrate judge’s imposition of sanctions be, and hereby are,
OVERRULED. The defendant is precluded from offering any
legitimate, non-discriminatory reason to rebut any prima facie
case of disparate treatment discriminatory nonpromotion of the
individual named plaintiffs.
SIGNED this 15th day of July, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge