United States District Court, N.D. Indiana, Hammond Division
D.O.H., a minor, by OSAMA HADDAD and HIND HADDAD, individually, and as his parents and natural guardians, Plaintiffs,
LAKE CENTRAL SCHOOL CORPORATION, et al., Defendants.
OPINION AND ORDER
ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on the Motion for Sanctions [DE 80] filed by the plaintiff, David Osama Haddad, on January 26, 2015, and the Motion to Compel Production of Student Affidavits and Questionnaires [DE 88] filed by Haddad on February 16, 2015. For the following reasons, the Motion for Sanctions [DE 80] is DENIED, and the Motion to Compel Production of Student Affidavits and Questionnaires [DE 88] is DENIED.
The plaintiff, David Osama Haddad, initiated this lawsuit on November 16, 2011. Haddad, a former Lake Central High School student, alleged that other students bullied and harassed him, which led to physical and emotional damages. On August 8, 2014, the defendants filed a Motion for Sanctions [DE 39], which alleged that Haddad had failed to produce his entire Twitter profile. Within their Motion for Sanctions [DE 39], the defendants indicated that Haddad had produced only five pages of his Twitter profile. In their reply brief, the defendants produced fifty-six pages of Haddad's Twitter profile [DE 77-6] to demonstrate that Haddad had failed to produce his entire profile.
On February 20, 2015, this court granted in part and denied in part the defendants' Motion for Sanctions [DE 39]. Specifically related to the present issue, the court found that Haddad had failed to produce his entire Twitter profile and ordered him to produce that profile with redactions for privilege and relevance and to pay the reasonable expenses associated with that discovery dispute. Prior to the February 20, 2015 order, Haddad filed this present Motion for Sanctions [DE 80] and argued that the defendants filed the fifty-six pages of his Twitter profile without first disclosing the documents to him in violation of Federal Rule of Civil Procedure 37(c).
The defendants' Twitter production included an affidavit signed by the defendant, Robert McDermott, that stated he acquired the fifty-six pages of Haddad's Twitter profile on or about November 15, 2011. Haddad claimed that the defendants had not disclosed the fifty-six pages before filing their reply brief or mentioned it to his counsel. Upon seeing the fifty-six pages, Haddad's counsel contacted the defense counsel to request that the defendants withdraw their Motion for Sanctions [DE 39] because the defendants had made accusations with unclean hands. However, the defendants rejected that request and a second attempt before Haddad filed his Motion for Sanctions [DE 80].
Haddad also has claimed that the defendants withheld seventy-three pages of relevant documents for more than three years. The documents included eighteen pages of notes created by the defendant, Dr. Lawrence Veracco, thirty-one pages of notes created by Lake Central High School Assistant Principal Martin Freeman, and statements obtained from Lake Central High School students after the November 8, 2011 assault.
After Haddad filed his complaint in state court, the defendants indicated that they conducted an investigation to prepare a defense. As part of that investigation, Lake Central administrators obtained written statements from students and took notes during student interviews. McDermott, Principal of Lake Central High School, prepared a memorandum about the interviews, compiled documents, and placed documents into a master file. However, defense counsel admitted that some administrators maintained documents outside of the master file and that counsel was unaware of that practice until November 2014. As part of the investigation, McDermott viewed and printed Haddad's publicly available Twitter profile but maintained it in a personal file rather than the master file. On June 30, 2012, McDermott resigned from the Lake Central School Corporation and did not leave his personal file regarding the investigation. Defense counsel claimed that they were unaware that McDermott had Haddad's Twitter profile until Haddad issued individual discovery to him two years later.
On August 1, 2012, the defendants produced the discoverable portion of the master file along with a privilege log to Haddad. Initially, the defendants identified the referenced students by initials because they were minors, but they disclosed the students' names on January 17, 2013. Additionally, on November 6, 2014, they identified each person present during the interviews and the date that each statement was obtained.
On October 22, 2014, Haddad sent a second set of interrogatories and requests for production to Lake Central School Corporation and his first set of interrogatories to Veracco, McDermott, defendant, Sean Begley, and defendant, George Baranowski. The defendants stated that was the first time that Haddad had requested discovery from the individual defendants. Defense counsel claimed that he learned for the first time that information was missing from the master file when he contacted the individual defendants to prepare their discovery responses. Specifically, he learned that McDermott had a copy of Haddad's Twitter profile on November 18, 2014. On December 17, 2014, the defendants responded to the discovery requests and produced Haddad's Twitter profile, the notes of Veracco and Freeman, Freeman's handwritten notes on his desk calendar, and a privilege log. Twenty days later the defendants filed their reply brief, which included Haddad's Twitter profile.
Although the defendants disclosed the names of students that produced written affidavits and answered questionnaires, Haddad claimed that the defendants have withheld the actual statements on the basis of the work product doctrine and the Family Educational Rights and Privacy Act. Haddad has requested that the defendants produce the affidavits and questionnaires multiple times, but the defendants have rejected each request. Haddad then attempted to contact the witnesses but could only reach four of the students. Three of the witnesses did not remember the content of their statements, two additional witnesses have moved out of state without forwarding information, and another has left the country until Christmas of 2015.
Haddad did not file a Local Rule 37.1 certification along with his Motion for Sanctions [DE 80]. However, Haddad indicated that the parties exchanged letters on January 7, 2015 and January 8, 2015 regarding that dispute. The defendants indicated that Haddad's counsel called defense counsel on January 29, 2014 after he had filed his Motion for Sanctions. Haddad did file a Local Rule 37.1 certification with his Motion to Compel indicating that he had attempted to resolve that discovery dispute with the defendants.
"A party filing any discovery motion must file a separate certification that the party has conferred in good faith or attempted to confer with other affected parties in an effort to resolve the matter raised in the motion without court action." N.D. Ind. L.R. 37-1(a). The certification must include the date, time, and place of any conference or attempted conference and the names of any participating parties. N.D. Ind. L.R. 37-1(a)(1) and (2). The court may deny any motion that failed to include the required certification. N.D. Ind. L.R. 37-1(b).
The defendants have indicated that Haddad failed to file a certification pursuant to Local Rule 37-1 and have argued that the court should deny the motion outright. Additionally, they have claimed that Haddad did not attempt to resolve the dispute in good faith because he sent one letter and made one phone call after filing his Motion for Sanctions. However, Haddad has argued that the court has discretion to overlook the failure to file a certification when the party substantially complied with the necessary substance of the certificate. Mayes v. City of Hammond, Ind., 2006 WL 2037379, at *5 n.3 (N.D. Ind. July 18, 2006); see Lucas v. GC Servs. L.P., 226 F.R.D. 328, 335 (N.D. Ind. 2004) (finding the plaintiffs' lack of compliance not fatal when the motion reflected an effort to confer with the defendants).
Although Haddad did not file a certification pursuant to Local Rule 37-1, the parties did exchange letters in an attempt to resolve the dispute. Furthermore, the briefs demonstrate that the parties will not reach a mutual agreement on the Motion for Sanctions [DE 80]. Therefore, the court will address the underlying issues rather than denying Haddad's motion pursuant to Local Rule 37-1 and simply delaying a resolution of this dispute. See Felling v. Knight, 2001 WL 1782361, at *1 (S.D. Ind. Dec. 21, 2001) ("[T]he briefs leave little doubt the parties will not reach mutual agreement on the issues raised. Therefore, the court will address the underlying issues rather than deny Knight's motion solely on the basis of a procedural shortcoming. To hold otherwise would do little other than delay resolution of these issues....").
First, Haddad has argued that the defendants failed to disclose information in violation of Rule 26(a) and (e) and has requested sanctions for those violations. Without awaiting a discovery request, a party must provide to the other parties
a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment....
Federal Rule of Civil Procedure 26(a)(1)(A)(ii). "A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate...." Federal Rule of Civil Procedure 26(a)(1)(C). "A party must make its initial disclosures based on the information then reasonably available to it...[and] is not excused from making its disclosures because it has not fully investigated the case...." Federal Rule of Civil Procedure 26(a)(1)(E). Additionally, a party has a duty to supplement or correct a Rule 26(a) disclosure.
A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response:
(A) 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 ...