United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION ON SANCTIONS
L. PRYOR, UNITED STATES MAGISTRATE JUDGE
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.
152). 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
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
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.
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 his 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 his response on February 1,
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.
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 his 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.
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 alleged
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.
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. 152.] The Court noted that
it would address the Plaintiff's Request for Sanctions
via separate order. [Id.]
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).
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.
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. ...