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Leser v. Indianapolis Public Schools

United States District Court, S.D. Indiana, Indianapolis Division

May 9, 2019

DEBORAH L LESER, Plaintiff,
v.
INDIANAPOLIS PUBLIC SCHOOLS, BOARD OF SCHOOL COMMISSIONERS FOR THE CITY OF INDIANAPOLIS, ARY ANN SULLIVAN, Individually and in her Official Capacity, SAM ODLE, Individually and in his Official Capacity, LANIER ECHOLS, Individually and in her Official Capacity, MICHAEL O'CONNOR, Individually and in his Official Capacity, GAYLE COSBY, Individually and in her Official Capacity, KELLY BENTLEY, Individually and in her Official Capacity, DIANE ARNOLD Individually and in her Official Capacity, LEWIS D. FEREBEE, Individually and in his Official Capacity, LE BOLER, Individually and in her Official Capacity, WANDA LEGRAND, Individually and in her Official Capacity, LELA TINA HESTER, Individually and in her Official Capacity, Defendants.

          REPORT AND RECOMMENDATION ON SANCTIONS

          DORIS L. PRYOR, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Plaintiff's Motion to Compel Production of Documents, Request for In Camera Review, and Request for Sanctions (Dkt. 151)[1]. The Court previously granted and denied in part the Plaintiff's Motion to Compel and Request for In Camera Review, but took the Request for Sanctions under consideration. [Dkt. 208.] The Undersigned now recommends that the Plaintiff's Request for Sanctions be GRANTED IN PART and DENIED IN PART.

         I. Background

         The Court assumes familiarity with the underlying facts of this case, however, some background facts surrounding the Motion to Compel bear mentioning. On March 29, 2018, the Defendants provided the Plaintiff with their initial privilege log, which contained 404 separate entries. The parties discussed this privilege log during a meet and confer telephone call on May 11, 2018. The parties later discussed this with the Court during a telephonic status conference on May 30, 2018. The parties agreed to work together to resolve the Plaintiff's concerns with the privilege log. Following the status conference, on June 1, 2018, Plaintiff's counsel color-coded the Defendants' privilege log, identifying documents that did not appear to qualify as privileged. After reviewing the Plaintiff's color-coded document, on June 11, 2018, the Defendants provided the Plaintiff with 10 unredacted documents from the privilege log.

         On September 18, 2018, the Defendants provided a second privilege log to the Plaintiff that contained a total of 459 entries. On December 14, 2018, Plaintiff's counsel color-coded the Defendants' second privilege log to highlight those documents she believed to be improperly withheld under attorney-client privilege. The parties discussed the second privilege log during a meet and confer telephone call on December 20, 2018. The Defendants provided a third privilege log to the Plaintiff on January 4, 2019, which the parties discussed during a follow-up telephone call on January 9, 2019.

         A few days later, on January 15, 2019, the Court conducted a discovery conference with the parties, wherein it was represented that the parties had ongoing issues related to discovery and the Defendants' privilege log. On January 22, 2019, the Plaintiff filed her Motion to Compel Production of Documents, In Camera Review, and Request for Sanctions. The Defendants filed their response on January 28, 2019 and the Plaintiff filed her response on February 1, 2019.

         During a status call on March 13, 2019, the Plaintiff alerted the Court to discrepancies in the Defendants' privilege log, at which point the Court requested that the Plaintiff identify any other discrepancies, misrepresentations, or insufficiencies in the Defendants' privilege log through supplemental briefing. Specifically, the Court wanted the parties to address the sufficiency of the general description of the privileged entries in the log to assist the Court in determining whether the Defendants' privilege log was reliable and whether the documents could appropriately be withheld under attorney-client privilege.

         The parties appeared for a telephonic status conference on March 19, 2019 to address counsel for the Defendants' questions regarding the purpose of the supplemental briefing. The Court reemphasized the need for additional briefing to address the Plaintiff's allegation that the Defendants' privilege log contained numerous discrepancies and misrepresentations and, thus, was unreliable. The Plaintiff filed her additional briefing on March 21, 2019 and the Defendants filed their response brief on March 28, 2019. A reply was filed by the Plaintiff on April 3, 2019.

         The parties appeared in person before the Undersigned for oral argument on April 2, 2019, wherein the Plaintiff alleged that all 418 entries of the Defendants' privilege log in Leser and 543 out of 552 entries in Jensen contained insufficiencies, misrepresentations, or mistakes. The Plaintiff provided numerous binders with each insufficiency, misrepresentation, and mistake catalogued and tabbed. After reviewing a select few entries of the privilege log at oral argument, the Court concluded that while the general descriptions may have been sufficient on their face, the Plaintiff was correct in asserting that a portion of the descriptions did not match up with the documents they allegedly described. The Court ordered the Defendants to submit a revised privilege log by Friday, April 5, 2019.

         On April 8, 2019, the parties returned for additional oral argument before the Undersigned. After reviewing the revised log to determine whether the attorney-client privilege was properly applied, the Court ordered the Defendants to produce 148 withheld documents for in camera review, which were provided to the Court on April 10 and 11, 2019. On April 18, 2019, the Court granted in part and denied in part the Plaintiff's Motion to Compel and Request for In Camera Review. [Dkt. 151.] The Court noted that it would address the Plaintiff's Request for Sanctions via separate order. [Id.]

         II. Legal Standard

         “The court's inherent power and Rule 37 supply it with broad authority to sanction parties who abuse the discovery process.” Houston v. C.G. Sec. Services, Inc., 302 F.R.D. 268, 281 (S.D. Ind. 2014) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). “Rule 37 applies when a party violates a court order, ” Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL- MJD, 2015 WL 2371597, at *10 (S.D. Ind. May 18, 2015), however, “a formal written order to comply with discovery is not required.” REP MCR Realty, L.L.C. v. Lynch, 363 F.Supp.2d 984, 998 (N.D. Ill. 2005). The Court's inherent powers also allow it to sanction bad-faith behavior. NASCO, 501 U.S. at 43-46. Sanctions serve two purposes: to penalize parties who do not follow the rules and to deter others tempted that abusive conduct has no consequences. Greviskes v. Universities Research Ass'n, Inc., 417 F.3d 752, 759 (7th Cir. 2005).

         Rule 37 sanctions are appropriate where a party displays willfulness, bad faith, or fault in violating his discovery obligations. Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). Willfulness or bad faith may be inferred through a party's “pattern of contumacious conduct or dilatory tactics, ” Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1383 (7th Cir. 1993), and fault considers whether a party's discovery conduct demonstrates objectively a lack of reasonableness. Marrocco, 966 F.2d at 224.

         Rule 37(a)(4)(A) states that the court shall require sanctions based upon the costs of seeking a motion to compel. Stookey v. Teller Training Distributors, Inc., 9 F.3d 631, 637 (7th Cir. 1993) (“Rule 37(a)(4) clearly allows for an award of the expenses incurred in obtaining an order to compel, including attorney's fees.”). Pursuant to Federal Rule of Civil Procedure 37(c)(1)(A), if the Court grants a Rule 37 motion for sanctions, it “may order payment of the reasonable expenses, including attorney's fees, caused by the failure, ” unless the opposing party was substantially justified, or the award would be unjust. Fed.R.Civ.P. 37(c)(1)(A); United Consumers Club, Inc. v. Prime Time Mktg. Mgmt. Inc., 271 F.R.D. 487 (N.D. Ind. 2010) (citing Rickels v. City of South Bend, Ind.,33 F.3d 785, 787 (7th Cir. ...


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