In Re: In the Matter of the Fort Totten Metrorail Cases Arising Out of the Events of June 22, 2009

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
In the Matter of the
FORT TOTTEN METRORAIL CASES
Arising Out of the Events of June 22, 2009
LEAD CASE: Jenkins v. Washington
Metropolitan Area Transit Authority, et Case No. 10-MC-314 (RBW/JMF)
al.,
THIS DOCUMENT RELATES TO:
ALL CASES
MEMORANDUM OPINION
This case was referred to me for resolution of discovery disputes. Currently pending and
ready for resolution is Defendant ARINC Incorporated’s Motion for Sanctions Against
Defendant WMATA [#423]. For the reasons stated herein, the motion will be denied.
BACKGROUND
The collision between two Washington Metropolitan Area Transit Authority
(“WMATA”) trains occurred on June 22, 2009, and a lawsuit pertaining to it was filed within
two days. Software called the Advance Information Management (“AIM”) system had been
installed by ARINC and plaintiffs named ARINC as a defendant in the complaint. See Master
Complaint [#5]; Defendant ARINC Incorporated’s Memorandum of Points and Authorities in
Support of Motion for Sanctions Against Defendant WMATA [#423-1] at 2. On December 17,
2010, WMATA asserted a cross claim against, inter alia, ARINC for indemnity and contribution.
Defendant Washington Metropolitan Area Transit Authority’s Cross-Claim Against Defendants
Alstom Signaling, Inc., Ansaldo Sts USA, Inc., and ARINC Incorporated [#140].
On April 1, 2011, Judge Walton set April 15, 2011, as the deadline for production of
documents. Amended Scheduling Order [#234]. Nevertheless, WMATA continued to produce
documents well after that date in response to demands by the parties, including ARINC. [#423-1]
at 4.
On August 10, 2011, ARINC took the deposition of a man named Daniel Epps, III, a
WMATA employee who served as the Director of the Operations Control Center where
ARINC’s software, the AIM system, is in use. [#423-1] at 4. Eppps indicated that another
WMATA employee named Beck Pak had the responsibility to make recommendations pertaining
to a Business Process Review conducted by an ARINC subcontractor in connection with the
design and implementation of the AIM system. Id.
ARINC had previously placed WMATA’s production of documents into a database. Id. at
4. After Epps’ deposition, ARINC searched its database to find some documents referencing Pak
and those that did, came for the most part, from ARINC’s own production. Id. ARINC inquired
of WMATA whether it had collected and produced documents from Pak’s file. Id. at 4-5. While
WMATA investigated, ARINC looked in the database for the files of other WMATA employees,
Arturo Weldon, Robert Gholston, III, and then later Milton Jetter, after WMATA indicated that
Jetter was a contract specialist who had dealt with the contract between ARINC and WMATA.
Id. at 5.
On September 22, 2011, ARINC contacted WMATA about its concerns regarding how
few documents had been produced as to these individuals and on September 29, 2011, the day
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before all discovery was to close, WMATA indicated that it was in the process of collecting the
documents pertaining to these individuals. Id. at 6. WMATA also indicated that it had identified
another employee, Ashak Rajpal, who was a contracting officer for the “WMATA ROCS/AIM
upgrade.” Id.
According to ARINC, from September 30, 2011, to October 14, 2011, WMATA made
eight document productions, consisting of almost 300,000 pages of documents, and that when
ARINC filed the current motion, it was still awaiting the production of additional documents.
[#423-1] at 8. Having filed its motion for summary judgment on November 11, 2011, without
certain documents, ARINC claims that it has been prejudiced by having to proceed without them.
Id. at 8-9, 16. It urges that WMATA be precluded from using these documents while ARINC is
permitted to use them, and that the jury be instructed that it may draw an adverse inference from
WMATA’s late production. Id. at 23. Finally, ARINC demands that it be paid its attorney’s fees
and costs for having to file the motion. Id. at 23-24.
In its opposition to ARINC’s motion, WMATA supplements the history of this dispute by
recounting its responses to the discovery demanded by plaintiffs and its fellow defendants. See
WMATA’s Opposition to ARINC Incorporated’s Motion for Sanctions [#463]. First, WMATA
notes that it had to respond simultaneously to the discovery demands of the plaintiffs and its co-
defendants. [#463] at 4. With the concurrence of plaintiffs, “WMATA created seven general
categories of requested materials to classify responsive documents” and used this approach “to
address countless complications presented by the requests for documents from the co-
defendants.” Id. Because WMATA and ARINC shared an e-discovery vendor, WMATA
indicated that it was not asked and therefore did not provide the names of the “custodians” of the
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produced discovery since it believed that ARINC had equal access to those names. Id. at 5.
WMATA ultimately produced more than 3 million pages of documents (id. at 4) and insists that
“[T]housands of pages of documents naming the five individuals named in ARINC’s motion [for
sanctions] were produced before ARINC raised this discovery dispute.” Id. at 5.
On July 16, 2010, ARINC served its answer to the First Amended Master Complaint
[#35] and specified, as its eighth defense, the government-contractor defense. Defendant ARINC
Incorporated’s Answer to the First Amended Master Complaint [#62] at 48. ARINC now cites
this defense as a basis for its motion for summary judgment against the plaintiffs, arguing that
ARINC partakes of the sovereign immunity afforded WMATA because it was WMATA’s
contractor. See Defendant ARINC Incorporated’s Reply to WMATA’s Opposition to Motion for
Sanctions [#491] at 7; Defendant ARINC Incorporated’s Motion for Summary Judgment [#428].
In its initial disclosure, ARINC identified 33 current or former WMATA employees as
witnesses with information related to ARINC’s claims and defenses. WMATA’s Opposition to
ARINC Incorporated’s Motion for Sanctions [#463] at 6. Included in that list were 1) Robert
Ghoulston, 2) Beck Pak, and 3) Arturo Weldon, three of the potential witnesses who were the
subject of ARINC’s inquiries in September, 2011. Id. As to these three people, ARINC indicated
that they had knowledge and information regarding: “(i) performance of the ROCS Contract; (ii)
the design of the AIM product for WMATA; and (iii) communications with ARINC personnel
regarding the development, testing, cutover, and/or installation of the AIM software for
WMATA.” Id. ARINC further indicated in its initial disclosure that it would rely on contracts
between itself and WMATA in support of its government contractor defense and that one of
those agreements, dated October 23, 2004, states that notices are to be sent to Jetter and that the
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agreement is signed by Rajpal. Id. at 7.
WMATA responded by producing eight witnesses “who testified with regard to
WMATA’s use of the AIM system, the contract with ARINC and the related Business Process
Review, during thirteen days of depositions.” Id. WMATA also permitted the inspection of the
“Operations Control Center (where the central computer system using the AIM system is
operated) over two days.” Id. Ultimately, WMATA produced 3,348,483 pages of electronically
stored information while ARINC produced 2,476,363 pages, to which both sides applied an
electronic records system to sort, group, and digest. Id. at 8.
According to WMATA, in the late summer of 2011, ARINC sought discovery of
documents pertaining to Pak, Walden, Jetter, and Ghoulston. [#463] at 9. On August 8, 2011,
ARINC also served a notice of a Rule 30(b)(6) deposition. Id. WMATA responded to the
demand by producing responsive, non-privileged documents related to Pak and Weldon on
September 30, 2011. Id. at 10. WMATA also identified three witnesses it intended to produce
for the 30(b)(6) deposition: 1) Pak, 2) Tim Shoppa, and 3) Rajpal. Id. WMATA also produced
electronically stored information from Ghoulston’s hard drive, explaining that only
approximately 20% of the 23,600 documents on that hard drive would be responsive. Id. at 11.
Finally, “WMATA also agreed to produce additional witnesses for depositions and designated
testimony previously provided by its witnesses to respond to several other issues raised in
ARINC’s notice of deposition.” Id. WMATA complains, however, that “ARINC never provided
a listing of key documents and categories of documents it sought in the discovery dispute” and
furthermore, that, although WMATA completed its supplemental productions by November 4,
2011, ARINC “has not requested dates for the designated 30(b)(6) witnesses, and has not
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formally responded to WMATA’s offer to designate testimony of witnesses in response to
several topics in ARINC’s 30(b)(6) notice of deposition.” Id.
In its reply, ARINC’s insists that WMATA’s production in September of 2011 was late,
and that it should have produced the documents from these “key custodians” in its original
production because their production was clearly called for in the request for documents that
ARINC served in August of 2010. Defendant’s ARINC Incorporated’s Reply to WMATA’s
Opposition to Motion for Sanctions [#491] at 1-4. ARINC further claims that it was prejudiced
because had it had the documents sooner it could have done additional follow up discovery
during the discovery period and then used the documents produced and perhaps other
information developed therefrom in the motion for summary judgment it has now filed. Id. at 8.
ANALYSIS
First, and to clear away some brush, I must dispose of arguments that ARINC made in its
opening brief but does not address in its reply.
In its opening brief, ARINC argued that WMATA failed in its obligation to preserve
certain records, ignoring the principles that are applied when a party, through inadvertence or
with a nefarious intent, causes the loss of electronically stored or other information. In its
opposition, WMATA explained that every document ARINC demanded was produced, even
though WMATA had to restore data from back-up tapes in order to do so. ARINC did not
quarrel with WMATA’s statement in its reply and WMATA has convinced me that it lost
nothing that ARINC demanded. There being no evidence of any loss of data, the complicated
principles pertaining to preservation and spoliation do not, thankfully, have to be considered.
Second, ARINC argued in its opening brief that sanctions were appropriate because of
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WMATA’s alleged failure to comply with its obligation to make the initial disclosures required
by Rule 26(a)(1). WMATA responded that the government contractor defense asserted in
ARINC’s answer, which would ultimately become the basis of its motion for summary judgment,
is not a claim or defense that WMATA has asserted or will assert. Thus, WMATA had no
responsibility to produce discoverable information as to that defense.
Federal Rule of Civil Procedure 26 provides in pertinent part:
(A) . . . [A] party must, without awaiting a discovery request,
provide to the other parties:
(i) the name . . . 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;
(ii) a copy–or a description by category and location–of
all documents, electronically stored information,
and tangible things 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).
WMATA points out that ARINC’s government contractor defense is not a defense or
claim that WMATA is asserting and that therefore this rule did not apply to its initial disclosure.
[#463] at 1. ARINC responds to this argument by stating the following in a footnote:
. . . The discovery rules, however, do not offer this kind of
insulation. The rules require the production of requested
documents that are relevant to “any party’s claim or defense,” not
just those claims or defenses that pertain specifically to the
producing party. Fed. R. Civ. P. 26(b)(1).
[#491] at 7 n.1.
But, the rule cited by ARINC in its footnote is not the rule that pertains to initial
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disclosures. Rule 26(b)(1) defines the scope of discovery in general and not the scope of the
required initial disclosures under Rule 26(a)(1). Indeed, if ARINC’s argument were accepted,
the latter would read with the “amendment” shown in italics as follows:
(A) . . . [A] party must, without awaiting a discovery request,
provide to the other parties:
(i) the name . . . of each individual likely to
have discoverable information–along with
the subjects of that information–that the
disclosing any party may use to support its
claims or defenses, unless the use would be
solely for impeachment;
(ii) a copy–or a description by category and
location–of all documents, electronically
stored information, and tangible things that
the disclosing any party . . . may use to
support its claims or defenses, unless the use
would be solely for impeachment;
This would impose an extraordinary new obligation on the parties to a lawsuit and
ARINC’s contention that Rule 26(a)(1) should be read to impose it cannot be countenanced.
Since the initial disclosure rule cannot serve as the basis of a sanction, the only rule-based
sanction available to ARINC would be if WMATA’s assertedly late response violated a court
order. See Fed. R. Civ. P. 37(b). Of course, WMATA never violated any court order. Indeed,
the only court order pertaining to this controversy is Judge Walton’s order that all written
discovery be completed by April 15, 2011. Ironically, ARINC violated a court order by
demanding additional discovery in September 2011, in direct violation of Judge Walton’s
scheduling order and without ever seeking leave to do so. Thus, ARINC finds itself in the
strange position of demanding sanctions for an opposing party’s lateness in responding to
discovery that ARINC should have not propounded in the first place. It would be a perverse
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reading of the Federal Rules of Civil Procedure to sanction WMATA for ARINC’s claim that
WMATA failed to aid ARINC in violating a court order in order to secure discovery that ARINC
should not have had.
Rule based sanctions not being available, ARINC is left to invoke the inherent authority
of the court. But, as the court of appeals recently made clear, “To support a sanction under this
authority, the court must make a finding by clear and convincing evidence that Noble committed
sanctionable misconduct that is tantamount to bad faith.” Ali v. Tolbert, 636 F.3d 622, 628 (D.C.
Cir. 2011). Here, there is no claim by ARINC, let alone a showing by clear and convincing
evidence of such bad faith on WMATA’s part.
Furthermore, in considering the award of a sanction under its inherent authority, the court
must consider, inter alia, the prejudice to the opposing party. Bonds v. District of Columbia, 93
F.3d 801, 808 (D.C. Cir. 1996). Any claim of prejudice to ARINC is, at this point, premature.
First, as ARINC has to concede, if Judge Walton grants its motion for summary judgment,
accepting its governmental contractor defense on the present record, ARINC has not suffered any
prejudice whatsoever. Second, I see no reason why ARINC cannot now move Judge Walton to
be permitted to supplement its motion with additional, recently disclosed information from
WMATA that advances its case. Third, even if its motion is denied, ARINC can still move
Judge Walton in limine or at trial for the preclusion it seeks and, again, if he grants it, ARINC
will not be prejudiced. At this point, the claim of prejudice is so attenuated and hypothetical that
it would be an abuse of discretion to award sanctions. Indeed, the prejudice is so hypothetical
that I question whether the motion even presents a case or controversy rather than an improper
request for an advisory opinion. See Los Angeles v. Lyons, 461 U.S. 95 (1983).
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CONCLUSION
For the reasons stated above, Defendant ARINC Incorporated’s Motion for Sanctions
Against Defendant WMATA [#423] will be denied. An Order accompanies this Memorandum
Opinion.
SO ORDERED. Digitally signed by John M. Facciola
DN: c=US, st=DC, ou=District of
Columbia,
email=John_M._Facciola@dcd.uscou
rts.gov, o=U.S. District Court, District
of Columbia, cn=John M. Facciola
Date: 2011.12.19 15:22:58 -05'00'
____________________________________
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
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