Month: January 2012

Excellent Summary of Rule 36 – Requests To Admit

The author, Alan Naar, has prepared an excellent summary of Rule 36, which controls requests to admit.

He has also summarized the relevant New Jersey Rule.

He is correct that requests to admit are a useful litigation tool.  They can be used to obtain admissions that a document is genuine or that a document is a business record.  They become problematic when used too aggressively to obtain admissions about facts that are in dispute.  The other party will deny them and the party seeking the admissions will have obtained nothing.

Also, remember that in Illinois the number of requests to admit is limited to 28.

Edward X. Clinton, Jr.

First Circuit Affirms Default Judgment Discovery Sanction

CRISPIN-TAVERAS v. MUNICIPALITY OF CAROLINA, Court of Appeals, 1st Circuit 2011 – Google Scholar.

In this case the First Circuit Court of Appeals affirmed a sanction of a default on liability against defendants who did not respond to discovery requests.

The court noted that the defendants did not appeal to file discovery responses or make Rule 26 disclosures.  More seriously, the defendants did not respond to plaintiff’s motion for sanctions, which under a local rule, meant that the allegations in the motion were deemed admitted.  The First Circuit explains:

Federal Rule of Civil Procedure 37(b) gives the district court a “veritable arsenal of sanctions” for failure to comply with discovery orders, including designating facts as established, striking pleadings, or rendering a default judgment. Malot v. Dorado Beach Cottages Assocs., 478 F.3d 40, 44 (1st Cir. 2007). Although a “drastic sanction,” “[t]he entry of a default judgment provides a useful remedy when a litigant is confronted by an obstructionist adversary and plays a constructive role in maintaining the orderly and efficient administration of justice.”Remexcel Managerial Consultants, 583 F.3d at 51 (citations and internal quotation marks omitted).

When faced with a motion for sanctions, the non-moving party must file an opposition. District of Puerto Rico Local Rule 7(b) states, “Unless within fourteen (14) days after the service of a motion the opposing party files a written objection to the motion, incorporating a memorandum of law, the opposing party shall be deemed to have waived objection.” A party’s failure, on account of ignorance or neglect, to timely oppose a motion in the district court constitutes forfeiture. See Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 102 (1st Cir. 2003).”

The Court of Appeals also noted that the district court gave adequate warnings to the defendants that they risked the entry of a default judgment.

Edward X. Clinton, Jr.

Robinson v. CHAMPAIGN UNIT 4 SCHOOL DISTRICT, Court of Appeals, 7th Circuit 2011 – Google Scholar

Robinson v. CHAMPAIGN UNIT 4 SCHOOL DISTRICT, Court of Appeals, 7th Circuit 2011 – Google Scholar.

This is an unpublished opinion of the Seventh Circuit reversing the district court’s decision to dismiss a lawsuit on the basis that the Rule 26(a) disclosures were insufficient.

The plaintiff sued the defendant school district claiming wrongful termination of employment based upon race discrimination and retaliation.  The plaintiff was a pro se litigant who argued that she did comply with the rules and make appropriate disclosures.

In the Seventh Circuit, the district court’s rule 37 sanctions are reviewed for abuse of discretion.  See Greviskes v. Univ. Research Ass’n, Inc., 417 F.3d 752, 758-59 (7th Cir. 2005).  The court noted that “dismissal with prejudice is an extreme sanction that should be used only as a last resort in situations where the noncomplying party displayed willfulness, bad faith or fault.”

Here, the decision was reversed because the district court failed to adequately explain the basis for its ruling.  “We do not see in the record before us a clear explanation of how Robinson failed to comply with Rule 26(a)(1). She submitted a timeline that set out the events underlying her complaint and listing the persons present during each incident she deems significant. She also states in her complaint that she is seeking back pay, a straightforward category of damages that the school district may easily compute. Cf. Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (explaining that damages computation is especially necessary when plaintiff seeks complex damages such as lost profits)….We see no reason why Robinson’s disclosures were insufficient to allow the school district to commence discovery—particularly given that the majority of her proposed witnesses are current or former employees of the school district—and so the school district’s argument that it has been prejudiced is unpersuasive. Even in cases of prejudice, district courts must consider and explain why lesser sanctions would be ineffective before dismissing a case. See Maynard, 332 F.3d at 468. Although Robinson had already been sanctioned once by requiring her to pay a portion of the school district’s attorney fees, the judge did not explain why barring Robinson from calling the witnesses she failed to provide information on—the sanction recommended by Rule 37(c)(1)—or limiting her possible recovery to back pay for failure to provide a detailed computation of other categories of damages would beinsufficient to cure any prejudice to the defendants.”

Comment: this is a thoughtful opinion of use to anyone resisting a Rule 37 motion for sanctions.  It is unfortunate that it was not published.

Edward X. Clinton, Jr.

District Court Bars Two Trial Witnesses Who Were Not Properly Disclosed in Rule 26 Disclosures

SILICON KNIGHTS, INC. v. EPIC GAMES, INC., Dist. Court, North Carolina 2011 – Google Scholar.

This is an unpublished opinion barring two trial witnesses who were not disclosed by Epic Games in pretrial disclosures.

Rule 26(a) requires each party to disclose the identity of potential witnesses long before trial.  The failure to disclose a witness can lead to disastrous sanctions.  The appeal is under an abuse of discretion standard.

The court summarized Rule 26 as follows:

Federal Rule of Civil Procedure 26(a) requires a party to make certain initial disclosures, including the identity 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.” Fed. R. Civ. P. 26(a)(1)(A). Rule 26(e) provides that

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

Fed. R. Civ. P. 26(e)(1) (emphasis added).”

The court noted that the failure to disclose the witnesses was compounded by the fact that the initial disclosures were amended several times, but the witnesses were not included in the updated disclosures.

Epic’s oblique references to Clifford Bleszinski and Steven Polge during discovery were insufficient to alert SK that Bleszinski and Polge were potential witnesses. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 329-30 (4th Cir. 2011). Although Epic supplemented its initial Rule 26 disclosures four times, Epic failed to disclose Bleszinski or Polge. Moreover, because SK has not deposed Bleszinski or Polge, Epic’s failure is not substantially justified or harmless.”

Edward X. Clinton, Jr.

District Court Dismisses Case Where Plaintiff Failed To Show Up For His Deposition

L. C. JOHNSON, Plaintiff,
Robert Migliorino, et al., Defendants.

No. 10-CV-1076.United States District Court, C.D. Illinois.

This is a case decided by the United States District Court for the Central District of Illinois.  The plaintiff filed the lawsuit but did not show up for his deposition, participate in discovery or respond to the discovery sanctions motion.  The decision is unpublished but is available on the Google search engine.
The district court explained its reasoning as follows:
“Pursuant to F.R.C.P 37(b)(2)(C), when a party fails to obey a court order to provide discovery, the court has discretion to dismiss the action. Federal Rule 37(d) allows a similar sanction when a party fails to appear for his deposition when it has been properly noticed. Here, there was proper notice, but the plaintiff failed to appear at the deposition. The facts demonstrate the willfulness and bad faith on the part of the plaintiff which justifies dismissal of this action pursuant to F.R.C.P. 37(d). See also Hindmon v. National-Ben Franklin Life Insurance Corp., 677 F.2d 617, 620, 621 (7th Cir. 1982). Alternatively, F.R.C.P. 41(b) allows for a dismissal with prejudice when a plaintiff fails to prosecute his lawsuit or does not comply with the federal rules or a court order. See Ball v. City of Chicago, 2 F.3d 752, 760-761 (7th Cir. 1993). Accordingly, the Court finds that it is appropriate to allow Defendants’ Motion for Sanctions [27] by dismissing Plaintiff’s complaint. As a result, the Court also finds that Defendants are entitled to an award of the expenses, including attorney fees, resulting from Plaintiff’s failure to attend the scheduled deposition.”
The decision can be found here.
This result is to be expected where litigants do not make the effort to comply with the court’s rulings.