Facts
- Vicky Lee and another plaintiff sued Vernon Walters and other defendants (state officials) in federal court in the District of Oregon.
- During discovery, plaintiffs served requests for production of documents and noticed depositions.
- Defendants served no written responses to the requests for production.
- Defendants produced some documents only late and only after plaintiffs sought court help through motions practice.
- Defendants failed to appear for properly noticed depositions.
- Defendants were represented by Barnes, an experienced attorney and Oregon Assistant Attorney General.
- Barnes told plaintiffs’ counsel he would seek a protective order regarding discovery, but he did not file one and did not seek extensions from the court.
- Plaintiffs filed three motions to compel because discovery responses were not forthcoming.
- The magistrate judge issued multiple discovery orders; defendants and Barnes ignored or disobeyed four separate court orders related to discovery compliance.
- Barnes explained the noncompliance by pointing to a busy litigation schedule and frequent travel, but he did not give advance notice to opposing counsel or the court that depositions or discovery obligations could not be met.
- Plaintiffs moved for sanctions of about $10,000 against defendants and Barnes under Fed. R. Civ. P. 37(a)(4)(A), 37(b), and 37(d); Rule 26(g); and the court’s own authority to manage litigation and address misconduct.
Issues
- Whether defendants’ failure to serve written responses to document requests, failure to appear for depositions, and disobedience of discovery orders required sanctions and fee shifting under Fed. R. Civ. P. 37(a)(4)(A), 37(b), and 37(d).
- Whether sanctions were available under Fed. R. Civ. P. 26(g) when defendants served no signed discovery responses or objections.
- Whether the court could impose monetary sanctions directly on Barnes, an Assistant Attorney General, or whether his status as a state employee (including Eleventh Amendment concerns) prevented personal liability for fees.
- Whether later, partial discovery compliance reduced or eliminated sanctions where plaintiffs had already been forced to file motions and obtain court orders to secure compliance.
Decision
- The district court adopted the magistrate judge’s findings and recommendation and granted sanctions in substantial part.
- The court found Rule 37(d) applied because defendants failed to appear for depositions and failed to serve written responses to requests for production.
- The court ordered Barnes to pay plaintiffs’ reasonable attorney’s fees caused by the discovery violations, consistent with Rule 37’s fee-shifting provisions and the lack of substantial justification.
- The court rejected Rule 26(g) as a sanction basis because defendants had not served signed discovery responses or objections to which Rule 26(g)’s certification requirement could attach.
- The court held that Barnes could be sanctioned personally for his discovery conduct even though he was an Assistant Attorney General; the sanctions were directed at him individually for litigation misconduct, not as damages against the state.
- The court directed publication of the order as a public reprimand of counsel’s conduct.
Legal Principles
- Under Fed. R. Civ. P. 37(d), a court may impose sanctions, including attorney’s fees, when a party fails to appear for a deposition or fails to serve written responses to requests for production, particularly after the opposing party has attempted to resolve the dispute without court action.
- When a motion to compel is granted, Rule 37’s fee-shifting provisions generally require an award of reasonable expenses unless the noncompliance was substantially justified or an award would be unjust.
- A busy schedule or travel does not substantially justify ignoring discovery requests, skipping depositions, or disregarding discovery orders, especially where counsel neither seeks a protective order nor requests more time.
- Sanctions may be directed to counsel personally when counsel is responsible for willful or repeated discovery failures and disobedience of court orders.
- Fed. R. Civ. P. 26(g) sanctions depend on an attorney’s signature on discovery requests, responses, or objections; where no signed responses were served, Rule 26(g) does not apply.
- Later compliance with discovery obligations does not erase sanctionable conduct when the earlier failures caused delay and forced the opposing party to incur unnecessary fees.
Conclusion
In Lee v. Walters, the District of Oregon sanctioned an Assistant Attorney General under Rule 37 after defendants served no written responses to document requests, failed to appear for depositions, and ignored multiple discovery orders, forcing plaintiffs to file repeated motions to compel; the court awarded plaintiffs their reasonable fees caused by the misconduct, declined to apply Rule 26(g) because no signed responses existed, and held that personal monetary sanctions against state counsel were permitted and not barred by Eleventh Amendment concerns.