Defense Counsel Sanctioned Under Rule 37(b)(2)


This is a typical Rule 37 sanctions case in which the party fails to respond to discovery and then makes a number of excuses that do not prove compliance. After detailing the discovery deficiencies, the court explains:

In response, Defendants do not contend that they have complied fully with the Court’s discovery orders. Instead, they argue the merits of the case, and claim that (1) they have repeatedly reached out to Plaintiffs’ counsel to discuss the responses, (2) they are confused by Plaintiffs’ assertion that they have continued to object to Plaintiffs’ requests, (3) Plaintiffs “have ample discovery” because they conducted a three-hour deposition of one of the Defendants, Leon Saja, and (4) they are continuing to gather documents in order to prepare supplemental discovery responses. Resp. 2-5, ECF No. 64.

None of those points remedy the fact that Defendants have had multiple opportunities to fully comply with the Court’s orders and have failed to do so. Instead of objecting to the Discovery Master’s report when it was issued back in December 2015, Defendants have engaged in delay tactics and willful noncompliance.

Civil Rule 37(b)(2) authorizes the Court to sanction behavior when a disobedient party fails to show that noncompliance was substantially justified, or that an award of reasonable expenses and fees would be unjust. Defendants have not provided adequate reasons for the repeated noncompliance. In its earlier order, the Court warned them that “any further failure to cooperate with the progression of the case or to comply with an order of the Court will be treated as conduct tantamount to bad faith, and will result in harsher sanctions under Civil Rule 37.” The Court will issue those harsher sanctions now: (1) Defendants shall pay the Plaintiffs’ reasonable expenses, including attorney fees, incurred with the present motion, see ECF Nos. 63, 67; (2) Defendants shall pay the Plaintiffs’ reasonable expenses, including attorney fees, incurred with the Plaintiffs’ motions to compel filed on March 13, 2015, see ECF Nos. 25, 26, 30, 40, 44; (3) Defendants shall pay Plaintiffs’ share of the Discovery Master’s fees and expenses associated with his appointment and resolution of the earlier discovery issues through the report issued on December 10, 2015; and (4) Defendants shall pay the entirety of the Discovery Master’s fees and expenses associated with his upcoming assessment of the discovery issues.

If the Defendants continue to defy the Court’s orders, the Court will impose harsher sanctions, including directing that certain designated facts be taken as established for purposes of the action as to Plaintiffs’ claims, prohibiting Defendants from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence, and treating the noncompliance as contempt of the Court. See Fed. R. Civ. P. 37(b)(2).

Source: FIRNENO v. NATIONWIDE MARKETING SERVICES, INC., Dist. Court, ED Michigan 2017 – Google Scholar

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