United States District Court, S.D. Florida
DONNETT M. TAFFE, Plaintiff,
SCOTT J. ISRAEL, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
G. TORRES, United States Magistrate Judge
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
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.
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.
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)).
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)).
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).
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).
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).
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
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
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.
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
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.
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
Captain Robert Cates and Ms. Goodrich
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 ...