United States District Court, S.D. Indiana, Terre Haute Division
REPORT AND RECOMMENDATION
J. DINSMORE UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Second
Motion for Sanctions [Dkt. 212]. District Judge
William T. Lawrence designated the undersigned Magistrate
Judge to issue a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B). [Dkt. 220.] For the
reasons set forth below, the Magistrate Judge recommends that
Plaintiff's Motion be DENIED.
a Fair Credit Reporting Act (“FCRA”) action in
which Plaintiff asserts Defendant mixed credit information
belonging to another consumer (Plaintiff's son) into
Plaintiff's credit file and failed to adequately correct
the issue. In this discovery dispute, Plaintiff primarily
sought the documentation relied upon by Defendant when it
determined Plaintiff had a “mixed file.”
5, 2018, the Court granted in part and denied in part
Plaintiff's Motion for Sanctions and to Compel. [Dkt.
202.] The Court ordered Defendant to “provide a
complete and unequivocal response to Interrogatory No. 3 and
produce all documents responsive to Request for Production
No. 37.” [Dkt. 202 at 7.] This meant that
Defendant was required to produce information in its database
that Defendant's employee Lynn Prindes reviewed to
determine when and how the credit files were combined.
[Dkt. 213 at 10.] The Court also ordered Defendant
to re-produce Ms. Prindes for a deposition if requested by
Plaintiff, and Defendant was “precluded from imposing
any limitations upon the scope of such deposition.”
[Dkt. 202 at 7.]
10, 2018, Plaintiff served Defendant his Fourth Amended
Second Notice of 30(b)(6) Deposition, named Ms. Prindes as
the designated witness, and included twenty-two topics.
[Dkt. 214-5.] Defendant objected to this notice,
arguing that Plaintiff could not choose who Defendant
designated as its Rule 30(b)(6) witness(es). [Dkt. 221 at
11.] The parties then participated in a status
conference with the Court, during which the Court told the
parties that Plaintiff could not pick who Defendant
designated as its Rule 30(b)(6) witness(es), but that
Defendant was to present its Rule 30(b)(6) witness(es) on the
noticed day of the deposition, July 17, 2018.
day of the deposition, Defendant produced Ms. Prindes, and
only Ms. Prindes. Plaintiff claims that Ms. Prindes was
unable to answer many of the questions concerning the noticed
topics. [Dkt. 213 at 18.] Additionally, during the
deposition, Ms. Prindes referenced viewing “source
data” for the mixed files on Defendant's system
called “Data Viewer, ” which were not previously
produced before, or as a result of, the Court's June 5,
2018 Order. Plaintiff repeatedly requested a copy of these
documents during the deposition, but Defendant refused.
[Dkt. 213 at 16.] Defendant, however, produced the
documents on July 20, 2018. [Dkt. 221 at
15.] Moreover, Defendant offered to produce
additional witnesses, including Ms. Prindes, as well as any
additional documents. [Id.] Plaintiff declined this
request and filed the instant Motion for sanctions.
courts may impose appropriate sanctions, including dismissal
or default, against parties who violate discovery rules and
orders. Hoskins v. Dart, 633 F.3d 541, 543 (7th Cir.
2011). A court's inherent power permits it to protect the
integrity of the judicial system. Chambers v. NASCO,
Inc., 501 U.S. 32, 44-45 (1991). Additionally, under
Rule 37, the court has the power to sanction a party's
making of evasive or incomplete disclosures in response to
document requests or interrogatories, or in answering
deposition questions. Fed.R.Civ.P. 37.
exercising its inherent power or invoking Rule 37, the
guiding principle is that a sanction must be proportional to
the abusive conduct. Allen v. Chicago Transit Auth.,
317 F.3d 696, 703 (7th Cir. 2003). The Court should consider
“the egregiousness of the conduct in question in
relation to all aspects of the judicial process.”
Dotson v. Bravo, 321 F.3d 663, 667-68 (7th Cir.
2003) (internal quotation omitted). Furthermore, when a party
fails to comply with a discovery order, the court may, under
some circumstances, sanction the disobedient party by
rendering a default judgment against it. Default is an
extreme remedy and “should be entered only when
absolutely necessary, such as where less drastic sanctions
have proven unavailing.” United States v. Di
Mucci, 879 F.2d 1488, 1493 (7th Cir. 1989) (citations
omitted). To enter default judgment, the court must find a
showing of “willfulness, bad faith, or fault” on
the part of the disobedient party. Id.
Plaintiff argues that sanctions, including a default
judgment, are appropriate because Defendant violated the
Court's Order by concealing the existence of relevant
evidence. Defendant contends counsel was unaware of the
existence of the particular Data Viewer documents that were
not produced until Ms. Prindes referenced them in her
deposition, and Plaintiff has provided no evidence to
contradict that assertion. It appears that Ms. Prindes
created the screen shots in question while preparing just
prior to the deposition, and failed to advise counsel that
she had done so. Defendant argues, that upon learning of the
documents, Defendant provided them to Plaintiff “and
offered to produce Ms. Prindes for unlimited additional
deposition testimony relating thereto.” [Dkt. 221
at 23.] Defendant did not immediately produce the
documents to Plaintiff during Ms. Prindes' deposition,
but did produce the documents-which, upon review, do not
appear to contain any additional information not already
produced to Plaintiff-three days later on July 20, 2018.
[SeeDkt. 221-16; Dkt. 221-17.]
Plaintiff argues that sanctions are necessary because Ms.
Prindes was not sufficiently prepared as a Rule 30(b)(6)
deposition witness, and she made false statements under oath.
Without citation to any record to suggest that such a
designation was ever made, Defendant argues that it produced
Ms. Prindes as a Rule 30(b)(6) witness on some of the topics,
but as a Rule 30(b)(1) individual witness on the topics she
was unable to address. [Dkt. 221 at 4.] Defendant
claims it had the impression that it would produce additional
Rule 30(b)(6) witnesses at a later date, but because
Plaintiff specifically requested to depose Ms. Prindes,
Defendant chose to produce only Ms. Prindes on July 17, 2018.
reviewing the relevant transcript testimony, the Court finds
that Ms. Prindes was not sufficiently prepared as a Rule
30(b)(6) witness. “Rule 30(b)(6) imposes a duty upon
the named business entity to prepare its selected deponent to
adequately testify not only on matters known by the deponent,
but also on subjects that the entity should reasonably
know.” Crouse Cartage Co. v. Nat'l Warehouse
Inv. Co., No. IP02-071CTK, 2003 WL 23142182, at *5 (S.D.
Ind. Jan. 13, 2003) (citing Media Svcs. Group, Inc. v.
Lesso, Inc., 45 F.Supp.2d 1237, 1253 (D. Kan. 1999)).
Ms. Prindes was not prepared to represent Defendant as a Rule
30(b)(6) witness. Plaintiff argues that, “[a]ccording
to Prindes herself ...