Sines v. Kessler

MEMORANDUM OPINION & ORDER

JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Plaintiffs' second Motion for Sanctions Against Defendant James Alex Fields Jr. under Rule 37 of the Federal Rules of Civil Procedure. ECF No. 1003 (“Pls.' Mot.”). Plaintiffs contend that Fields “has persistently failed and refused to provide routine discovery in this case, disobeyed Court orders, destroyed documents, and, most recently, refused to testify in a deposition after seeking multiple extensions.” Id. at 6.^[1] They ask the Court to impose three types of sanctions at the upcoming jury trial, see id., “to level the evidentiary playing field and put the Plaintiffs in the position they would have held had Fields participated properly in discovery, ” id. at 7. The motion has been fully briefed, see ECF Nos. 1011, 1022, 1037, 1055, and may be resolved without a hearing, Fed.R.Civ.P. 78(b); W.D. Va. Civ. R. 11(b). Plaintiffs' motion will be GRANTED in part and DENIED in part as detailed below.

I. The Legal Framework

Rules 26 through 36 of the Federal Rules of Civil Procedure provide specific devices or procedures-such as interrogatories, requests for admission, and depositions-for parties to obtain discoverable information before trial. Courts rely “in large part on the good faith and diligence of counsel and the parties in abiding by these rules and conducting themselves and

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their judicial business honestly.” Metro. Opera Ass'n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int'l Union, 212 F.R.D. 178, 181 (S.D.N.Y. 2003). When they do not, Rule 37 provides one mechanism for a district court to compel compliance, Fed.R.Civ.P. 37(a), or to sanction an unacceptable failure to follow the rules, see Fed. R. Civ. P. 37(b)-(f).^[2] Plaintiffs' pending motion primarily relies on Rule 37(b)(2)(A). See generally Pls.' Mot. 10-12, 15-16 (citing Mem. Op. & Order of June 11, 2020, ECF Nos. 759, 760; Order of Aug. 10, 2020, ECF No. 829).

Rule 37(b) authorizes the district court where an action is pending to impose appropriate sanctions when a party “fails to obey an order to provide or permit discovery.”^[3] Fed.R.Civ.P. 37(b)(2)(A); see R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 15 (1st Cir. 1991) (“The rule's language clearly requires two things as conditions precedent to engaging the gears of the rule's sanction machinery: a court order must be in effect, and then must be violated, before . . . sanctions can be imposed.”). “Once a court makes the threshold determination under Rule 37(b)”

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that a prior discovery order has been violated, Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 102 (D. Md. 2003), subsection (b)(2)(A) “contains two standards-one general and one specific-that limit [the] court's discretion” in choosing what sanction(s) to impose, Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982).^[4] “First, any sanction must be ‘just'; second, the sanction must be specifically related to the particular ‘claim' which was at issue in the order to provide discovery.” Ins. Corp. of Ir., 456 U.S. at 707 (citing Fed.R.Civ.P. 37(b)(2)(A)).

In making this determination, the district court should consider: “(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would . . . be[] effective.” S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (citing Belk, 269 F.3d at 348); see 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)). “The presence or absence of any one of these factors is generally not decisive, ” First Mariner Bank v. Resolution Law Grp., Civ. No. MJG-12-1133, 2013 WL 5797381, at *4 (D. Md. Oct. 24, 2013), as the district court has broad discretion to “‘make whatever disposition is just in light of the facts of the particular case, '” id. (quoting Bethesda Softworks, LLC v. Interplay Enter. Corp. Civ. No. DKC-09-2357, 2011 WL 1559308, at *2 (D. Md. Apr. 25, 2011)).

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Some sanctions, however, do require the court to find that the disobedient party acted willfully or in bad faith before the sanction may be imposed. See, e.g., Young Again Prods. v. Acord, 459 Fed.Appx. 294, 305-06 (4th Cir. 2011) (civil contempt); Hodge, 360 F.3d at 450 (adverse inference); Mut. Fed. Sav. & Loan Ass'n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989) (default judgment).

The Fourth Circuit has not clearly defined the movant's burden of proof on a Rule 37 motion for sanctions. Brooks Sports, Inc. v. Anta (China) Co., Ltd., No. 1:17cv1458, 2018 WL 7488924, at *11 (E.D. Va. Nov. 30, 2018), adopted by 2019 WL 969572, at *1 (E.D. Va. Jan. 11, 2019); Glynn v. EDO Corp., Civ. No. 07-1660, 2010 WL 3294347, at *2 (D. Md. Aug. 20, 2010). “Some courts have applied the preponderance of the evidence standard. Other courts have required clear and convincing proof of misconduct, especially when imposing severe sanctions.” Jenkins v. Woody, No. 3:15cv355, 2017 WL 362475, at *12 (E.D. Va. Jan. 21, 2017) (internal citation omitted). For the reasons explained below, I conclude that Plaintiffs have, for the most part, failed to show that (a) Fields's challenged conduct violated the cited discovery orders, and (b) the proposed evidentiary sanctions are appropriate to remedy Fields's actual violations of those orders and deter similar misconduct. My “decision would remain the same under either standard.” Id. Cf. Glynn, 2010 WL 3294347, at *2 (“[T]he precise burden of proof in a motion for sanctions is unclear in the Fourth Circuit. However, proving misconduct occurred by ‘clear and convincing' evidence, as opposed to by a mere preponderance, certainly suffices.”).

II. Background

On August 11-12, 2017, “the Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in

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Charlottesville, Virginia. Violence erupted.” Sines v. Kessler, 324 F.Supp.3d 765, 773 (W.D. Va. 2018) (“Sines I”); see Second Am. Compl. ¶¶ 1-7, ECF No. 557. Plaintiffs, several residents who were injured that weekend, contend that “this violence was no accident”-rather, they allege that Defendants “conspir[ed] to engage in violence against racial minorities and their supporters” in violation of 42 U.S.C. § 1985, and related state laws. Sines I, 324 F.Supp.3d at 773. Six remaining Plaintiffs allegedly were injured when Fields drove his car into a crowd of counter-protesters after the main “Unite the Right” event ended on Saturday, August 12. See Id. at 774-75; Second Am. Compl. ¶¶ 11, 14-17, 19.^[5] “While ultimate resolution of what happened at the rallies awaits another day, ” the presiding District Judge has held that these Plaintiffs plausibly alleged certain Defendants “formed a conspiracy to commit the racial violence that led to the Plaintiffs' varied injuries, ” Sines I, 324 F.Supp.3d at 773; see Id. at 787-88 (discussing allegations against Defendant Vanguard America), and that those “co-conspirator Defendants may be held liable for the overt act Fields[] took in furtherance of the conspiracy, ” id. at 797; see Id. at 796-97. Plaintiffs also alleged that Fields “wore Defendant Vanguard America's uniform and marched with other Vanguard America members” on August 12. See Id. at 778 (citing Am. Compl. ¶ 197).^[6] They did not allege Fields had any role in planning Unite the Right.

In his Answer to Plaintiffs' Second Amended Complaint, Fields admitted that “he attended the event in Charlottesville” on August 12, wore “a white polo shirt (that did not have the Vanguard [America] logo on it) and khakis, ” and carried “an object with the Vanguard logo

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for some portions of the event.” Def. Fields's Answer to Second Am. Compl. ¶ 331; see Sines I, 324 F.Supp.3d at 777-78 (noting Plaintiffs' allegations that “Defendant Vanguard America instructed its members ‘to arrive at the rally in matching khaki pants and white polos, '” Am. Compl. ¶ 115; that “[s]ome chapters planned to bring shields with matching logos, ” id. ¶ 121; and that “Vanguard America made twenty extra shields for attendees who were unprepared, ” id. ¶ 191). Fields denied (or invoked his Fifth Amendment privilege in response to) Plaintiffs' allegations that he conspired to commit, or committed, any acts of violence at Unite the Right. See generally Def. Fields's Answer to Second Am. Compl. ¶¶ 335-72; Second Am. Compl. ¶¶ 335-43 (Count I, § 1985 conspiracy); id. ¶¶ 344-50 (Count II, 42 U.S.C. § 1986); id. ¶¶ 351-55 (Count III, civil conspiracy); id. ¶¶ 356-63 (Count IV, negligence per se); id. ¶¶ 364-67 (Count V, Va. Code § 8.01-42.1); id. ¶¶ 368-69 (Count VI, assault and battery); id. ¶¶ 370-72 (Count VII, intentional infliction of emotional distress).

III. Procedural History^[7]

This is Plaintiffs' second Rule 37 motion against Fields. See Pls.' Mot. to Compel & Sanctions, ECF No. 671 (Mar. 9, 2020). In their first motion, “Plaintiffs argue[d] that Fields failed to fully answer the two sets of interrogatories submitted to him under Rule 33, failed to produce documents or permit inspection of his social media accounts and ESI as requested under Rule 34, and failed to obey [two] court orders directing ‘the Defendants' or ‘each Defendant'- i.e., Fields included-to provide or permit discovery of relevant ESI stored online or on [that Defendant's] identified electronic devices.” Mem. Op. of June 11, 2020, at 14; see Id. at 18

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(“Plaintiffs have not shown that the ESI Order (ECF No. 383) or the Social Media Order (ECF No. 582) required...