Doe v. Mast

1

BABY DOE, et al., Plaintiffs, v. JOSHUA MAST, et al., Defendants.

Civil Action No. 3:22cv00049

United States District Court, W.D. Virginia, Charlottesville Division

July 10, 2024

MEMORANDUM OPINION & ORDER

JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs' motion for sanctions against Defendant Joshua Mast and Defendant Stephanie Mast under Rule 37(b)(2) of the Federal Rules of Civil Procedure. ECF No. 336 (“Pls.' Mot.”). Plaintiffs assert that Joshua and Stephanie (together “the Masts” or “Defs. J&S Mast”) failed to obey a Discovery Order of November 28, 2023, ECF No. 326 (“Disc. Order”), granting Plaintiffs' prior motion to compel under Rule 37(a)(3)(B)(iv), ECF No 230. The Order required the Masts to: (1) supplement their amended responses and objections to Plaintiffs' first set of requests for production (“RFPs”), on or before December 19, 2023, by “stat[ing] whether any responsive materials are being withheld on the basis of [an] objection” to a particular RFP; and (2) produce “[a]ll other responsive materials . . . to Plaintiffs' counsel” by December 28 2023.^[1] See Disc. Order 12 (citing Fed.R.Civ.P. 34(b)(2)(B)-(C)); Pls.' Mot. 1-3, 6 8-11.^[2] Plaintiffs assert that the Masts failed to obey both directives in multiple ways. See Pls.' Mot. 6, 8-11; Pls.' Reply 1-8, ECF No. 341; Pls.' Surreply 1-2, ECF No. 382. They ask the Court to sanction the Masts by treating their failures as civil contempt of court, Fed. R. Civ. P. 37(b)(2)(A)(vii), and order them to pay Plaintiffs' reasonable expenses caused by the failures, Fed.R.Civ.P. 37(b)(2)(C). See Pls.' Mot. 11-16.

Joshua and Stephanie oppose Plaintiffs' motion for sanctions. Defs. J&S Mast's Br. in Opp'n 1. They assert that the motion is procedurally improper under Rule 37(a), see id. at 1-2, and urge “the Court [to] make the threshold determination that the Masts did not violate its November 28, 2023 order,” id. at 12-13 (citing Fed.R.Civ.P. 37(b)(2)(A)). Even if the Masts “failed to comply with the Court's order by not producing all responsive documents by December 28, 2023,” they maintain that their “non-compliance is not material” to this case's progress and that their legal team took diligent, good-faith efforts “during the narrow time directed,” id. at 4-5, to collect, review, and produce the “responsive documents within the Masts' custody and control,” id. at 3. See id. at 2-5, 12-16. More specifically, the Masts argue that they “produced substantially all responsive documents” to Plaintiffs' counsel on December 28, see id. at 3-5, 12-16; that Touhy regulations^[3] prevented them from contemporaneously releasing another 2,176 documents owned by the United States Government, see id. at 1, 6-9 (citing 32 C.F.R. § 97 et seq.); and that Virginia law forbids them to produce an untold number of “documents classified as confidential juvenile court records” without an order from the juvenile and domestic relations court, id. at 6, 9-11 (citing Va. Code §§ 16.1-305, 16.1-309). They also assert that Plaintiffs' objection to the Masts' failure to produce a privilege log, see Pls.' Mot. 3-4, 7-8; Fed.R.Civ.P. 26(b)(5), was resolved within hours after Plaintiffs filed this motion. See Defs. J&S Mast's Br. in Opp'n 11-12. Plaintiffs' motion for sanctions has been fully briefed, ECF Nos. 336, 340, 341, 382, and argued, ECF No. 394.

I. Summary

Joshua and Stephanie failed to obey the November 28, 2023 Order because they did not supplement their amended responses and objections to Plaintiffs' RFPs by December 19, 2023, and they did not produce all nonprivileged, previously unproduced responsive documents within their possession, custody, or control to Plaintiffs' counsel by December 28, 2023. See Disc. Order 12 (citing Fed.R.Civ.P. 34(a)-(b)). December 28 was the Masts' deadline to complete their document production to Plaintiffs' counsel. Joshua and Stephanie concede that, despite having at least 3,000 such documents in their actual possession at the time, they produced only 204 of those documents to Plaintiffs' counsel on December 28. See Defs. J&S Mast's Br. in Opp'n 1, 4, 6-12. They produced another 148 documents between January 8 and February 9, 2024. See id. at 4, 13.

As of February 14, Joshua and Stephanie had produced 352 documents to Plaintiffs' counsel. Id. at 1. They were still “withholding from production” thousands of responsive documents based on untimely objections that “the document categories are not legally in the[ir] custody and control.” Id. at 13; see id. at 1, 7-11, 13. The Masts appear to have known the legal avenues through which they could seek authorization to release 2,176 of those documents to Plaintiffs' counsel in accordance with my Order. See id. at 1, 6-9. They do not dispute that their attorney waited until the evening of December 28 to even inquire about those procedures. See Pls.' Reply 7-9. The Masts also do not dispute that they never corrected their amended responses and objections to conform to Rule 34(b)(2)'s express requirements. Disc. Order 12 (citing Fed. R. Civ. P. 34(b)(2)(B)-(C)). Plaintiffs are entitled to their reasonable expenses caused by the Masts' failure to obey the November 28, 2023 Discovery Order. See Fed.R.Civ.P. 37(b)(2)(C).

For the reasons explained below, however, I decline to find that J oshua and Stephanie's failures to obey this Order should be treated as civil contempt, Fed.R.Civ.P. 37(b)(2)(A)(vii). See 28 U.S.C. § 636(e)(6)(iii). I also find that my Order directing the Masts to supplement their amended responses and objections to Plaintiffs' RFPs within 21 days, Disc. Order 12 (citing Fed.R.Civ.P. 34(b)(2)(B)-(C)), did not require them to produce a Rule 26(b)(5) privilege log at the same time. Accordingly, Plaintiffs' motion for sanctions under Rule 37(b)(2), ECF No. 336, will be granted in part and denied in part. Plaintiffs may submit a petition setting out their reasonable expenses, including attorney's fees, caused by Joshua and Stephanie's established failures to obey the Discovery Order of November 28, 2023. Based on the current record, I am inclined to apportion payment of Plaintiffs' expenses between the Masts and the attorney(s) advising them. Fed.R.Civ.P. 37(b)(2)(C).

II. The Legal Framework

Rule 37(b)(2) authorizes “the court where the action is pending [to] issue further just orders” if a party “fails to obey an order to provide or permit discovery including an order under . . . Rule 37(a).” Fed.R.Civ.P. 37(b)(2)(A).^[4] Such further orders “may include” the sanctions listed in Rule 37(b)(2)(A), including “treating as contempt of court the failure to obey any order except” one to submit to a physical or mental examination, Fed.R.Civ.P. 37(b)(2)(A)(vii). “Instead of or in addition to” these sanctions, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). The court has discretion to decide both whether a party violated its prior discovery order, see Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 102 (D. Md. 2003), and, if so, what sanction(s) to impose for the violation, Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982) (citing Fed.R.Civ.P. 37(b)(2)).^[5] Cf. JTH Tax, Inc. v. H&R Block E. Tax Servs., 359 F.3d 699, 705 (4th Cir. 2004) (“We review a district court's grant or denial of a civil contempt motion for abuse of discretion. When a district court's decision is based on an interpretation of its own order, our review is even more deferential because district courts are in the best position to interpret their own orders.”).

“[I]ntent is not relevant to ‘the threshold determination under Rule 37(b) that a party . . . failed to obey a prior discovery order.'” Sines v. Kessler, 339 F.R.D. 96, 108 (W.D. Va. 2021) (quoting Thompson, 219 F.R.D. at 102); see S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2004). “Rather, intent is one factor that courts consider in ‘determining which sanction(s) to impose' for such a failure.” Sines, 339 F.R.D. at 108 (quoting S. States Rack & Fixture, 318 F.3d at 597). When choosing a sanction, the court should consider: (1) whether the non-complying party acted in bad faith; (2) the nature and degree of prejudice that the noncompliance caused other parties; (3) the need to deter this type of noncompliance; and (4) what is the least drastic sanction that will fairly achieve a desired result. See S. States Rack & Fixture, 318 F.3d at 597 (citing Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 348 (4th Cir. 2001) (en banc)); Beach Mart, Inc. v. L&L Wings, Inc., 784 Fed.Appx. 118, 123-24 (4th Cir. 2019) (citing Fed.R.Civ.P. 37(b)(2)(A)); Samsung Elec. Co. v. Nvidia Corp., 314 F.R.D. 190, 202 (E.D. Va. 2016).

Plaintiffs ask for two sanctions. See generally Pls.' Mot 2, 11-16. First, they ask the Court to order the Masts to pay Plaintiffs' reasonable expenses, including attorney's fees, caused by the Masts' failure(s) to obey the November 28 Discovery Order. See id. at 2, 15-16 (citing Fed.R.Civ.P. 37(b)(2)(C)). This sanction is mandatory if Plaintiffs show that Joshua and/or Stephanie violated any aspect of that Order, Fed.R.Civ.P. 37(b)(2)(C); Victor Stanley, Inc. v. SCH Enters., LLC, Civ. No. RDB-06-2662, 2019 WL 3841932, at *1 (D. Md. Aug. 14, 2019), unless the Masts carried the burden to show that their “failure was substantially justified or other circumstances make an award of expenses unjust.” Sines v. Kessler, No. 3:17cv72, 2020 WL 2736434, at *3 (W.D. Va. May 26, 2020) (quoting ...