In Greer v. Moon, District. Court, D. Utah 2025, the court denied a defense request for Rule 37 sanctions because the pro se litigant amended his disclosures in response to the court’s prior orders. The plaintiff’s Rule 26 disclosures were deficient.

The court explains: As to the first Woodworker’s factor, although Mr. Greer’s failure to properly disclose witnesses or evidence to Defendants is not harmless and has resulted in needless litigation and expenses, Defendants have not suffered the prejudice or surprise that Rule 37(c) exclusion contemplates, such as the introduction of new witnesses after the close of discovery, after expert reports and depositions are completed, and after dispositive motions have been filed.^[11] Instead, the court is able to rectify Defendants’ needless expenditures for needless litigation by ordering Mr. Greer to pay those expenses. If Mr. Greer later attempts to introduce information or witnesses he failed to produce in initial disclosures, the court may address Rule 37(c) exclusion at that time. Presently, incurring expenses does not hinder Defendants from presenting their defense and, as discussed below, is curable by methods other than exclusion.

However, the court denied “case-ending” sanctions.

The court also declines to impose the “case-ending” sanctions Defendants request for Mr. Greer’s failure under Rule 26. The court warned Mr. Greer that if he failed to comply with the court’s order compelling production of the Rule 26(a) information, he may be subject to potential case-ending sanctions under Rule 37(b)(2).^[16]Dismissing this case when costs and fees would rectify prejudice to Defendants would violate the clear preference to adjudicate cases on their merits.^[17] That is especially true where, as here, Mr. Greer is proceeding pro se. Albeit imperfect, Mr. Greer has attempted to comply with the court’s order to provide initial disclosures to Defendants, which renders Rule 37(b)(2) sanctions unnecessary at this juncture.

Comment: pro se litigants are governed by the same rules everyone else is, but they have a more difficult time complying with those rules.

In Countryman v. Vialpando, 2022-cv-000008, District court of Nevada, the plaintiff failed to answer discovery or sit for his deposition. That was enough for the district court which dismissed his case pursuant to Rule 37(d). The case was dismissed even though the court had no entered a prior order requiring plaintiff to comply.

In Ansley v. Wetzel, 21 cv 528 M.D. Pennsylvania, the plaintiff filed suit against prison guards for violations of his civil rights. Plaintiff sought to obtain video evidence of the incident but the video was lost. He moved for sanctions under 37, but his motion was denied because the tapes of the incident were lost prior to suit being filed.

The Defendants argued that there was no spoliation because they had no reason to retain the tapes because there was no use of force. The District court agreed with their argument:

Defendants submitted the declarations of Captain Jeffrey Madden and Captain Robert Bookheimer wherein they explain when video footage is retained at state correctional institutions. (Doc. 91-2 at 10-11, Madden Declaration ¶¶ 3-4; Doc. 91-2 at 12-13, Bookheimer Declaration ¶ 3). Captain Madden explained that video footage is typically recorded over when a camera’s memory capacity has been met, unless the video involved a planned or unplanned use of force. (Doc. 91-2 at 10-11, Madden Decl. ¶¶ 3-4). Captain Bookheimer further declared that video footage of an inmate’s escort to the RHU is generally not retained, unless in the event of an extraordinary occurrence report or other event deemed necessary by the Facility Manager. (Doc. 91-2 at 12-13, Bookheimer Decl. ¶ 3). The video footage at issue was not retained because the incidents did not involve either a planned or unplanned use of force, and there is no evidence that Ansley’s escort to the RHU involved an event triggering retention of the video.

“When a party argues that spoliation occurred before the complaint was filed, the court must conduct a fact-sensitive inquiry to determine at what point the spoliating party reasonably should have anticipated the litigation.” Bistrian, 448 F. Supp. 3d at 468. Ansley states that defendants should have been aware of impending litigation based on two grievances he filed on October 9, 2020, related to a “rape plot” fabricated by defendants. (Doc. 89 at 10; Doc. 89-1 at 38). However, the filing of these grievances does not support a pre-litigation duty to preserve recordings. Such an obligation arises when a party reasonably should have anticipated litigation concerning the grieved incidents. Bistrian, 448 F. Supp. 3d at 468 (“A party `is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”). Based on the filing of grievances related to a rape plot, defendants could not have reasonably anticipated litigation concerning the escort to the RHU on June 25, 2020, an incident involving masturbation on January 10, 2021, and the escort to the psychiatric observation cell on March 18, 2021. Because defendants could not reasonably foresee litigation and appreciate that the video footage at issue should be preserved for possible use in that litigation, they were not under a duty to preserve the video footage.

Conclusion: there as no duty to preserve evidence under Rule 37(e) before the lawsuit was brought.

Ed Clinton, Jr.

In NPF Franchising, LLC v. Sy Dawgs, LLC 37 F.4th 369 (6th Cir. 2022), the Sixth Circuit affirmed a Rule 37 sanctions award against the lawyers for NPF Franchising. The fees were awarded against NPF and the individual lawyers because the lawyers failed to comply with discovery obligations in the case, a dispute between an franchisor and a franchisee. I have quoted from the relevant portions of the opinion below.

“This case began in February 2018 with NPF’s complaint against SY Dawgs for breach of their franchise agreement and non-competition and non-disclosure agreement. About a week later, NPF amended its complaint. After the district court denied NPF’s motion for a preliminary injunction, NPF amended the complaint for a second time. SY Dawgs then moved for attorneys’ fees, costs, and expenses, pursuant to a contractual fee-shifting provision.^[1] SY Dawgs argued that it was entitled to monetary compensation because NPF was the “unsuccessful party” on its claim for injunctive relief. The district court denied the motion without prejudice as premature.

374*374 Around this time, in August 2018, NPF failed to appear at a status conference. At that conference, the district court noted that despite SY Dawgs having issued multiple subpoenas and responded to NPF’s discovery requests, NPF had thus far refused to respond to SY Dawgs’s discovery requests, with the discovery deadline two months away. SY Dawgs again moved for costs and fees, this time over NPF’s non-attendance at the status conference. At the next status conference, on September 4, 2018, new counsel, the Buchalter Law Firm, appeared for NPF and vowed to produce all outstanding discovery. The district court granted motions to appear pro hac vice on behalf of NPF filed by Buchalter Law Firm attorneys Tracy Warren and Kathryn Fox around this time.

Later in September, SY Dawgs again moved to compel discovery and for sanctions. It stated that NPF had provided no interrogatory answers or documents in response to the requests that it served on June 20, 2018. SY Dawgs also noted that NPF refused to designate a representative for corporate representative depositions. The parties then had a status conference in early October, where NPF represented to the district court that it had turned over all the requested discovery. Relying on this representation, the district court denied SY Dawgs’s motion for costs and fees but also expressed willingness to revisit the issue later. The district court also granted SY Dawgs’s motion to compel discovery “inasmuch as [NPF]’s counsel has represented to Court and counsel that all requested information has been disclosed.”

SY Dawgs moved for discovery sanctions yet again on October 25, 2018. It stated that NPF had failed to appear for a properly noticed deposition or produce any documents related to a subpoena. SY Dawgs also accused NPF of misrepresenting to the district court that it had produced all documents, given that it had later produced several hundred more documents. The district court then granted a motion by NPF to extend discovery, held another status conference at which it noted that SY Dawgs’s motion for sanctions was fully briefed, and asked the parties to confer and prepare a list of documents still needed. Soon after, it extended discovery again, this time until March 1, 2019.

The new discovery deadline brought yet another motion from SY Dawgs to compel discovery, filed at the end of December. In addition to alleging that NPF had provided insufficient or incomplete responses to several of SY Dawgs’s requests, SY Dawgs argued that NPF had provided no documents responsive to the 45 other requests. That same day, Buchalter Law Firm attorneys Rick Waltman and J. Patrick Allen were admitted pro hac vice to represent NPF. And NPF made its own motion to compel discovery and sanction SY Dawgs. It alleged that SY Dawgs had failed to supplement its prior discovery responses and that doing so was a “willful and concerted effort to avoid the discovery process.” The district court denied both parties’ motions for discovery sanctions, but it left the sanctions issue open for revisitation after litigation concluded. And, yet again, the court granted SY Dawgs’s motion to compel discovery. It also instructed NPF to respond to the discovery requests within 14 days or, in the alternative, certify to the district court that there is nothing responsive left to produce.

The 14-day deadline passed with no such certification from NPF. In February 2019, SY Dawgs renewed its motion for sanctions. It stated that “NPF and its pro hac vice-admitted counsel” had a “pattern of ignoring discovery obligations” and “flagrantly” ignoring both court orders compelling discovery. Def.’s Renewed Mot. for Sanctions, R. 161, PageID 3606. The district 375*375 court granted the motion, ordering NPF to file an affidavit certifying that it had fully complied with the discovery request and also ordering NPF’s counsel to file a “similar certification of compliance by counsel.” The district court warned that “[f]ailure to comply with this Order will result in sanctions, up to and including dismissal of Plaintiff’s action.” And it warned yet again that “any monetary sanctions for Plaintiff’s repeated discovery intransigence will be addressed at the conclusion of this action.”

Despite that admonition, NPF never complied. So, SY Dawgs moved for the ultimate sanction—to dismiss the case under Federal Rule of Civil Procedure 37. In the meantime, NPF moved for an interlocutory appeal of the sanctions order before our court. But NPF later voluntarily dismissed the appeal, and SY Dawgs renewed its motion to dismiss. NPF also sought a writ of mandamus from our circuit, stating that it would be “irreparably harmed” by “fully respond[ing] to all of Respondents’ discovery requests.” Pet. for Writ of Mandamus, R. 180, PageID 4054.^[2] Yet no protective order regarding these documents was sought by NPF from the district court, nor did the franchisor ever produce a privilege log. We denied the petition for mandamus. Finally, NPF moved for default judgment, stating that SY Dawgs was misrepresenting its efforts to cooperate with the court’s orders and communicate.

After this last flurry of motions, NPF moved to voluntarily dismiss the case with prejudice in July 2019. The district court granted its request. But just before the dismissal, SY Dawgs moved again for attorneys’ fees and costs.”

The District Court sanctioned four individual lawyers, their law firm and the client.

Because Rule 37 does not allow sanctions against a law firm, that portion of the sanctions award was reversed. However, the sanctions were upheld against the individual lawyers.

The lawyers argued on appeal that they had not received sufficient notice of the sanctions and had not had an opportunity to respond. The Sixth Circuit rejected both arguments. The lawyers argued that their position was “substantially justified” but the court did not accept that argument either.

Comment: In my opinion, this is a case where emotions got the better of the lawyers for NPF. No matter how you may feel about a case or the position of the other side, you must comply with court orders to answer discovery requests. If you work for a firm that appears to be headed down this path, consult ethics counsel before engaging in this behavior. It is unfortunate that the junior lawyers did not engage counsel to defend themselves. Their defense might have been different than the defense offered by their more senior colleagues.

If you have a question about ethics or discovery obligations and you do not know what to do, please call us. We can often help resolve messy situations if we have time to give advice.

Ed Clinton, Jr.

The Clinton Law Firm, LLC

Chicago, Illinois 60602

312.357.1515

This is a case where the plaintiff allegedly deleted some text messages from his phone that were relevant to this case. The Defendant moved for Rule 37(e) sanctions, but the motion was denied because the messages were obtained from other sources.

First, sanctions under Rule 37(e) are available “only where ESI has been `lost’ and `cannot be restored or replaced through additional discovery.'” Goldman v. Sol Goldman Invs. LLC, No. 20CV06727MKVSN, 2022 WL 2118199, at *3 (S.D.N.Y. June 11, 2022) (quoting Fed. R. Civ. P. 37(e)). Thus even if a party himself has deleted messages, there can be no sanctions if the messages are provided from another source, because they are not “lost.” Id. at *4 (holding sanctions are not available where Plaintiff deleted an email that was subsequently produced from another source: “The email was not lost because [the recipient] produced it at his deposition. Therefore, spoliation sanctions may not be awarded for Plaintiff’s failure to produce the May 28 email, and the Court need not inquire into Plaintiff’s state of mind.”); CBF Industria de Gusa S/A v. AMCI Holdings, Inc., No. 13CV2581PKCJLC, 2021 WL 4190628, at *11 (S.D.N.Y. Aug. 18, 2021) (noting that deleted messages that can be obtained from the other parties are not permanently lost or unrecoverable under Rule 37); Morgan Art Found. Ltd. v. McKenzie, No. 18CV4438ATBCM, 2020 WL 5836438, at *19 (S.D.N.Y. Sept. 30, 2020) (holding Rule 37 sanctions were not available because deleted messages which still exist in another account “are not permanently lost, and in fact they have already been produced”).

That is precisely the circumstance here; although Mr. Rosario deleted the text message chains from his own phone, they have been obtained from other participants: Plaintiff’s counsel and John Torres. Because Defendants have not and cannot establish that any relevant messages are “lost” and “cannot be restored or replaced through additional discovery,” their request for sanctions fails at the first step.^[2] See Watkins v. New York City Transit Auth., No. 16 CIV. 4161 (LGS), 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (Defendants have “the burden of establishing the elements of a spoliation claim by a preponderance of the evidence.”).

Source: Rosario v. City of New York, S.D. N.Y. 18 civ 4023, July 27, 2022.

In Tucker v. BMW of North America, LLC, No. C20-5050 (Western District of Washington, Tacoma) the court granted plaintiff’s motion for rule 37 sanctions against BMW. The court held that BMW had unilaterally narrowed the scope of discovery and had not complied with orders to produce documents. This is a minor sanction as the Defendant lost no right to defend itself in the litigation.

“Rule 37(b) allows for sanctions for not obeying a discovery order. Fed. R. Civ. P. 37(b)(2). It is well established in the Ninth Circuit that this rule “provides a wide range of sanctions for a party’s failure to comply with court discovery orders.” United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9th Cir. 1980). While Defendant did engage in some discovery, it unilaterally narrowed the scope of discovery and the Court’s order. Defendant failed to comply with the Court’s November 1 order, which has resulted in Plaintiff having to move to extend the time to complete discovery twice, Dkts. 71, 84, the instant motion for sanctions, Dkt. 86, and a stipulated extension of the trial date, Dkt. 94. Sanctions are therefore warranted, though not to the extent of Plaintiff’s request.

Defendant is hereby ORDERED to pay the fees and costs Plaintiff’s counsel incurred in bringing the motions for extension of time and this motion for contempt and sanctions. If necessary, Plaintiff shall submit a motion for such fees within 14 days of this order. Alternatively, and preferably, the parties shall notify the Court that the sanction has been paid.”