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Taffe v. Israel

United States District Court, S.D. Florida

May 3, 2017

DONNETT M. TAFFE, Plaintiff,
SCOTT J. ISRAEL, et al., Defendants.


          EDWIN G. TORRES, United States Magistrate Judge

         This matter is before the Court on Donnett M. Taffe's (“Plaintiff”) Motion for Sanctions (“Motion”) [D.E. 64] against Scott J. Israel (“Defendant”). On April 14, 2017, Defendant timely filed his response [D.E. 76] to which Plaintiff replied on April 27, 2017. [D.E. 80]. Therefore, this Motion is now ripe for disposition. After careful consideration of the Motion, response, reply, and relevant authority, and for the reasons discussed below, Plaintiff's Motion is DENIED.

         I. BACKGROUND

         Plaintiff originally brought this action on May 26, 2016 in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 16-009547. Plaintiff filed a five count Complaint against Deputy Wengert, in his individual and official capacity, and Sheriff Israel, in his individual and official capacity. Specifically, Count I is a state law claim for assault and battery against Deputy Wengert and Count II is a 42 U.S.C § 1983 claim under the Fourth and Fourteenth Amendments against Deputy Wengert. Count III is a state tort claim against Sheriff Israel, Count IV is a claim which appears to be both under state and federal law against Sheriff Israel, individually, and Count V is a 42 U.S.C. § 1983 claim against Sheriff Israel. On July 5, 2016, Defendants removed the state court action to this Court on the basis of federal question jurisdiction. The gist of Plaintiff's Complaint is that the Defendants are responsible for the wrongful death of Steven Jerold Thompson. Plaintiff alleges that Deputy Wengert killed Mr. Thompson and that the violation occurred as a result of the policies, practices, and customs instituted by Sheriff Israel. Accordingly, Plaintiff seeks an award of damages for loss of income, services, protection, care, assistance, companionship, comfort, guidance, counsel and advice, funeral and burial expenses, permanent mental and emotional injuries, court costs, punitive damages, and attorney's fees.

         II. ANALYSIS

         Plaintiff's Motion seeks to impose sanctions pursuant to Federal Rule of Civil Procedure 37 (“Rule 37”) against Defendant for his alleged failure to comply with the Court's Discovery Order on January 25, 2017. On that date, the Court granted in part Plaintiff's motion to compel and ruled that “[b]ecause there appears to be serious discovery issues with Defendants' document productions, Defendants are compelled to produce a 30(b)(6) corporate representative for deposition.” [D.E. 45]. In response to the Court's Order, Defendant produced five corporate representatives for deposition. Because the corporate deponents were allegedly deficient in numerous ways, Plaintiff requests that Rule 37 sanctions be imposed against Defendant for failing to comply with his discovery obligations and the Court's Discovery Order.

         Courts may impose sanctions pursuant to Rule 37 if the alleged misconduct was not “substantially justified” or if the sanctions would not be “unjust.” Fed.R.Civ.P. 37. Rule 37(d) authorizes an array of sanctions as identified in Rule 37(b)(2)(A)(i)-(vi), including “dismissing the action in whole or in part.” See also Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172 (5th Cir. 1977) (“Rule 37 empowers the district court to compel compliance with Federal discovery procedures through a broad choice of remedies and penalties, including dismissal with prejudice.”). The dismissal of an action is considered “an extreme remedy and should not be imposed if lesser sanctions will suffice.” Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir. 1988); see also Wanderer v. Johnston, 910 F.2d 652, 655-56 (9th Cir. 1990) (“The [Supreme] Court in National Hockey League granted district courts considerable discretion to impose the extreme sanction of dismissal or default where there has been flagrant, bad faith disregard of discovery duties.”) (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)).

         District courts are accorded “‘substantial discretion in deciding whether and how to impose sanctions under Rule 37.”' Bernath v. Seavey, 2017 WL 564941, at *4 (M.D. Fla. Feb. 13, 2017) (quoting Chudasama v. Mazada Motor Corp., 123 F.3d. 1353, 1366 (11th Cir. 1997)); see also French v. M&T Bank, 315 F.R.D. 695, 696 (N.D.Ga. 2016) (finding that Rule 37 “gives district judges broad discretion to fashion appropriate sanctions for violation of discovery orders; however, this discretion is guided by judicial interpretation of the rule.”). “In imposing sanctions, the court may consider ‘the unsuitability of another remedy, the intransigence of a party, and the absence of an excuse.”' Bernath, 2017 WL 564941, at *4 (citing Watkis v. Payless ShoeSource, Inc., 174 F.R.D. 113, 116 (M.D. Fla. 1997)). “Violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Id. (citing In re Chase and Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989) (inability to comply); Equal Employment Opportunity Comm'n v. Troy State Univ., 693 F.2d 1353, 1357 (11th Cir. 1982) (simple negligence or misunderstanding)).

         Courts need not make a finding of bad faith before imposing sanctions under Rule 37. In fact, “the 1970 amendments were specifically enacted to eliminate the possibility that a bad faith requirement would be read into the rule, and they contain no suggestion that bad faith should remain a prerequisite when an attorney, as opposed to a client, is subjected to sanctions.” Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir. 1993); see also Carlson v. Bosem, 2007 WL 1841067, at *2 (11th Cir. June 28, 2007) (“Defendants' contention that the district court was required to find that Dr. Bosem and his lawyer had acted in bad faith before ordering sanctions against them is also without merit.”) (citing Devaney, 89 F.2d at 1162).

         Alongside Rule 37, courts in the Eleventh Circuit have determined that under Rule 30(b)(6), “the inadequacies in a deponent's testimony must be egregious and not merely lacking in desired specificity in discrete areas.” Boland Marine & Mfg. Co., Inc. v. M.V. Bright Field, 1999 WL 280451, *3 (E.D. La. 1999) (quoting Zappa Middle E. Constr. Co. v. Emirate of Abu Dhabi, 1995 WL 686715, *5 (S.D.N.Y. 1995)). Thus, a discovery violation does not necessarily occur under Rule 30(b)(6) when a designated witness adequately testifies with respect to certain subject matter but not others, especially where the witness is not expected to be omniscient nor expected to have computer-like memory. See, e.g., Alexander v. FBI, 186 F.R.D. 137, 143 (D.D.C. 1998); EEOC v. American Int'l Group, Inc., 1994 WL 376052 (S.D.N.Y. 1994).

         This means that a Rule 30(b)(6) deposition does not require “absolute perfection in preparation, ” but only “a good faith effort . . . to find out the relevant facts.” Wilson v. Lakner, 228 F.R.D. 524, 528 (D. Md. 2005). “When it appears that a ‘designee is unable to adequately respond to relevant questions on listed subjects, then the responding [organization] has a duty to timely designate additional, supplemental witnesses as substitute deponents.”' Ajibade v. Wilcher, 2017 WL 119474, at *4 (S.D. Ga. Jan. 10, 2017) (quoting QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (citations omitted)). “All of these duties correspond to the ultimate underlying purposes of Rule 30(b)(6)-namely, preventing serial depositions of various witnesses without knowledge within an organization and eliminating ‘bandying, ' which is the name given to the practice in which people are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to the organization itself.” Alexander, 186 F.R.D. at 152 (citing Fed.R.Civ.P. 30(b)(6) Advisory Committee Notes, 1970 Amendment).

         Here, Defendant produced five corporate representatives for deposition to respond to Plaintiff's requests for production nos. 1-5, 6(g), 6(n), 13-17 and Plaintiff's interrogatories 12 and 13. The corporate deponents included: Diana Edwards (Administrative Coordinator, Crime Laboratory), Captain Robert Cates, Detective Steven Hoover, Ericka Pratt (Senior Background Investigator), and P.J. Goodrich (Administrative Assistant to Captain Cates). Plaintiff contends that the corporate deponents had either no knowledge of any discovery requests prior to January 2017 or, in the case of Diana Edwards, the excuse for the failure to produce the requested materials was due to “people not knowing what other people were doing . . . .” [D.E. 64]. Because the corporate deponents were allegedly deficient, Plaintiff argues that Defendant has not met his discovery obligations and continues to withhold documents, in violation of the Court's Discovery Order, that are pertinent to Plaintiff's claims.

         Defendant disputes Plaintiff's broad characterization that Defendant is either intentionally withholding documents or maliciously frustrating the discovery process. Defendant argues that he oversees different divisions and departments with different personnel that respond all the time to public records requests and to discovery in litigation. At times, different people are purportedly tasked with pulling records and, in most instances, the relevant documents are not electronically stored. Furthermore, Defendant suggests that at times human error is inevitable and some documents are not located in response to one request even when they were located months before in response to another request. As such, Defendant recognizes Plaintiff's concerns and has expressed his commitment to working cooperatively to resolve any outstanding discovery issues to conserve judicial resources and address any discrepancies as it relates to Defendant's discovery obligations. In light of the parties' broader arguments, we will now consider whether the corporate deponents that Defendant proffered warrant Rule 37 sanctions.

         A. Diana Edwards

         On February 7, 2017, Defendant produced Diana Edwards, the administrative coordinator for the county's crime lab, to address Plaintiff's request for production no. 6(N). Specifically, this request sought information on all crime laboratory reports in connection with the shooting of the decedent Steven Thompson (the “Decedent”):

6(N). Any and all crime laboratory reports with respect to any forensic testing, and/or examination of any evidence collected and/or obtained concerning the shooting of decedent Steven Thompson on June 5, 2014 and/or his death on June 6, 2014. Said documents shall include but are not limited to, all reports, worksheets/notes, laboratory bench notes, photographs, testing data and documentation of the processing of any of the evidence.

         Plaintiff argues that Ms. Edwards was unable to answer why the testing materials for fingerprint, firearm, and DNA items were not timely provided to Plaintiff in response to the initial public records request of July 17, 2015. Moreover, Ms. Edwards purportedly could not testify to the completeness of the DNA materials. To this extent, Plaintiff believes Ms. Edwards was an inadequate corporate representative and failed to explain Defendant's deficient document productions, which should allegedly subject Defendant to Rule 37 sanctions.

         But, Plaintiff's argument for sanctions, as it relates to Ms. Edwards, is undermined by the fact that she thoroughly explained the discrepancies in Defendant's document productions during her deposition and took affirmative steps to correct them going forward. As Defendant explains, Ms. Edwards highlighted what was done in order to first comply with Plaintiff's public records requests, and second, with discovery requests in this case. Ms. Edwards responded by producing all documents that she believed complied with both of Plaintiff's requests. When it was determined that certain DNA related documents were not included in the computer storage program that Ms. Edwards used, she went back and requested the additional information from the investigator that handled the evidence. Ms. Edwards then testified that her requests failed to reach the applicable personnel to determine if more documents were responsive.

         In order to ensure that any discovery mistakes did not happen again, Ms. Edwards called for the issue to be discussed at a meeting with the crime lab personnel. Defendant argues that Ms. Edwards went beyond what was required of her per the Court's Discovery Order and prepared screen shots and additional documents during her deposition to show Plaintiff exactly what was in the department's system and how it was viewed internally. Because Ms. Edwards' testimony thoroughly explained the reasons and the mistakes underlying Defendant's document productions, as it relates to the crime lab, and Ms. Edwards took affirmative steps to ensure that all documents would now be available to Plaintiff going forward, the Court finds that Rule 37 sanctions on this basis are DENIED.

         B. Captain Robert Cates and Ms. Goodrich

         Next, Plaintiff takes issue with the deposition testimony of Captain Robert Cates and his assistant, Ms. Goodrich. Defendant produced Captain Robert Cates as his corporate representative to answer questions in relation to interrogatory no. 13, which focused on Deputy Wengert's supervisors from 2004 to 2017:

13. Please state and identify the names and CCN of all persons who supervised Defendant GERALD WENGERT from February 2004 to the present, as well as ...

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