If a party disregards a court order to produce documents or update discovery responses, the court may order dismissal of the case pursuant to Rule 37. In Glover v. CoreCivic of Tennessee, No. 18-cv-2330 (S.D. Cal. February 11. 2020), the plaintiff failed to comply with an order to supplement its discovery responses, but the court denied the defendant’s motion to dismiss. The court reasoned that both parties were not dealing with each other in an appropriate and civil manner.
Rule 37 allows for terminating sanctions to be levied against a party for not obeying an order to supplement discovery responses. Fed. R. Civ. P. 37(c)(1)(C). It is so harsh a penalty that it should only be imposed as a sanction in extreme circumstances. Henderson, 779 F.2d at 1423 (9th Cir. 1986). When sanctions for dismissal are considered, the court weighs: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendant; (4) the public policy favoring disposition of cases on the merits; and (5) the availability of less drastic sanctions. Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986).
The public’s interest in expeditious resolution of litigation is not a factor that weighs in Defendant’s favor. The parties’ seeming inability to work cooperatively in bringing this case to trial or settlement is evidenced by the recent flurry of motion practice in this case. Since this motion has been filed Plaintiff has filed a Motion for Evidentiary and Monetary Sanctions for Spoliation of Evidence (Doc. No. 34), a Motion for Extension of Time to File an Opposition to the Current Motion (Doc. No. 40), a Motion to Disqualify Counsel (Doc. No. 41) and a Motion for Relief from Court Order Pursuant to Fed. R. Civ. P. 60(B); Motion for Sanctions (Doc. No. 42), and Defendant has filed three motions to stay related to Plaintiff’s motion to disqualify, spoliation of evidence and its own motion to dismiss (Doc. Nos. 45, 46, 47.) But the responsibility for this cannot be laid entirely at Plaintiff’s door.
None of the remaining factors weigh in Defendant’s favor either. The delay in producing the documents is not so prejudicial to CoreCivics that it cannot be remedied by, for example, extending the discovery cut-off date. Furthermore, by its own admission, GEO Group has produced countless records related to Mr. Glover, including those under his aliases. Notably, absent from Defendant’s motion is any mention of the fact that the video of the alleged fall has been destroyed.
Finally, Defendant argues that the imposition of lesser sanctions is not feasible because Plaintiff has not produced or disclosed the information sought because it is unfavorable to him and that prohibiting him for producing evidence of injury would nullify his claim. But Defendant’s all or nothing approach is extreme and ignores other less drastic measures such as monetary sanctions, evidence and issue preclusion, or tailored jury instructions. See Fed. R. Civ. P. Fed. R. Civ. P. 37(c)(1)(A)-(B). But Mr. Kaufman is in violation of Judge Stormes’ order, and the court has given him “crystal clear” warning of the significant consequences available to the court for any continuing failures. Henderson, 779 F.2d at 1424. At bottom, however, the record here does not reveal a long history of inexcusable delay and neglect on the part of plaintiff’s counsel and, as far as this court is aware, Mr. Kaufman has not violated any other discovery orders.
While the court is not condoning Plaintiff’s failure to comply with Judge Stormes’ order, dismissal of this case is not warranted under either Rule 37 or Rule 41. Accordingly, the court DENIES Defendant’s Motion to Dismiss for Lack of Prosecution (Doc. No. 31). The parties are reminded that the basic standards of professionalism are expected of all attorneys appearing before this court. See CivLR 83.4(a)(1)(a)-(b), (2)(a)-(b).
Comment: civil conduct is often the best way to avoid problems in any court.