E.L.A. v. Abbott House, Inc.

Background

During discovery, Roslyn Murov, M.D., asked E.L.A. to produce records that allegedly showed Murov had notice of E.L.A.’s complaints of sexual or physical abuse. The parties agreed that E.L.A. would respond by January 21, 2020. After E.L.A. did not respond, Murov asked the court to compel production. The court ordered E.L.A.’s counsel to produce responsive documents or state that E.L.A. had none, and warned that noncompliance could lead to sanctions.

Counsel did not meet the court-ordered deadline. E.L.A. eventually produced responsive documents on February 21, 2020. Murov then moved under Rule 37 of the Federal Rules of Civil Procedure, which permits sanctions for violating discovery obligations and court discovery orders. Murov requested dismissal of all claims against her or, alternatively, preclusion of evidence that she knew about E.L.A.’s abuse complaints. She also requested attorney’s fees and costs.

Analysis

The court found that sanctions were warranted. It concluded that counsel had an obligation to produce the requested documents, had a culpable state of mind because he did not timely produce them despite agreed and court-ordered deadlines, and that the documents were relevant to E.L.A.’s allegations concerning Murov’s notice of the alleged abuse.

The court found counsel’s failure to respond was willful. It noted repeated discovery and court-order compliance problems and concluded that counsel could have informed Murov and the court about the claimed communication difficulties with E.L.A. The court also found that counsel had been warned that failing to comply could result in dismissal.

The court denied Murov’s request for dismissal as moot. A separate Report and Recommendation issued the same day proposed dismissing the entire action for failure to prosecute, based in part on the discovery violations at issue. The court stated that dismissal was more appropriately addressed in that separate recommendation and that imposing dismissal as a discovery sanction would be duplicative.

The court also denied preclusion of the evidence. Although the delay was substantial, E.L.A. had produced the documents before summary-judgment motions or trial. The court viewed preclusion as a severe, case-dispositive sanction and found that the evidence was significant to Murov’s alleged liability and knowledge. It further concluded that responsibility for the delay lay at least partly with counsel, making a sanction against counsel more appropriate than preventing E.L.A. from presenting the evidence.

Fees and costs

The court granted Murov’s request for reasonable attorney’s fees and costs caused by the discovery violations. Rule 37 generally requires such an award unless the failure was substantially justified or an award would otherwise be unjust. The court found that counsel had not shown either circumstance.

Conclusion and disposition

The court granted in part and denied in part Murov’s motion for sanctions. It ordered E.L.A.’s counsel to reimburse Murov, within 30 days, for reasonable attorney’s fees and costs incurred in obtaining the documents requested on December 9, 2019. If counsel disputed the amount, Murov could submit a fee application within 14 days after that dispute, supported by time records and other materials.

The order also directed the Clerk to close docket entries 258 and 259, marking docket entry 258 as denied and docket entry 259 as granted in part and denied in part. The opinion states that docket entry 258 concerned a separate request by other defendants to compel E.L.A.’s deposition or dismiss claims based on the failure to attend; the court had previously denied that request as premature and stated that, if still pending, it was denied as moot.