United States District Court, Western District of Louisiana, Monroe Division
JUDGE JAMES T. TRIMBLE, JR.
KAREN L. HAYES, MAG. JUDGE
Before the undersigned Magistrate Judge, on reference from the District Court, is a motion for sanctions [doc. # 27] filed by defendants City of Ruston, et al. The motion is opposed. For reasons assigned below, the motion is GRANTED IN PART and DENIED IN PART.
In October-November 2014, plaintiff William Green and defendants City of Ruston, et al. filed cross-discovery motions regarding plaintiff’s invocation of the Fifth Amendment privilege against self-incrimination in response to defendants’ discovery requests and efforts to depose him. See Motion for Protective Order and Motion to Compel [doc. #s 20 & 23]. In a December 16, 2014, Memorandum Order addressing the motions, the court stated that “plaintiff should be required to respond to the outstanding written discovery requests. Review of the proposed discovery uncovers few, if any, areas of inquiry that will require plaintiff to invoke his privilege against self-incrimination.” (Dec. 16, 2014, Mem. Order [doc. # 26]) (emphasis added). The undersigned added that “[i]If plaintiff finds that he must invoke privilege as to certain interrogatories or requests, then he is free to do so as to that specific discovery request, and supplement his response/answer immediately following the conclusion of his criminal trial.” Id. (emphasis added). In the end, the court granted-in-part defendants’ motion to compel and ordered plaintiff to answer defendants’ November 15, 2013, discovery requests within 21 days from the date of the order. Id.
On January 7, 2015, – 22 days after the date the order was signed and filed (but 21 days after it was docketed/entered), plaintiff served defendants with his responses to the written discovery. (Pl. Ans. and Responses; M/Sanctions, Exh. B). For each and every interrogatory and request for production, plaintiff asserted his Fifth Amendment privilege against self-incrimination, and “reserved the right to supplement the response no later than 10 days prior to trial.” Id. Despite these qualifiers, plaintiff managed to provide some substantive, but perfunctory, answers/responses to a number of the inquiries.
On January 29, 2015, defense counsel wrote to plaintiff’s counsel and outlined the shortcomings that he perceived with her answers/responses. (Jan. 29, 2015, Letter from K. Mascagni to C. Lexing; M/Sanctions, Exh. “C”). Defense counsel asked plaintiff’s counsel to supplement her prior responses or else he would be compelled to petition the court for relief, including a request for costs and fees. Id.
After receiving no response to the January 29 letter, defendants filed the instant motion for sanctions on February 20, 2015, – exactly one business day before plaintiff’s criminal trial was scheduled to begin. In their motion, defendants cited plaintiff’s failure to comply with the court’s December 16, 2014, order, and sought sanctions pursuant to Rule 37(b) consisting of dismissal, exclusion of evidence related to the unanswered discovery, and an award of costs and fees associated with filing the motion.
On February 26, 2015, at the request of plaintiff’s counsel, the undersigned held a telephone status conference to address pending deadlines and defendants’ motion. Pursuant to the conference, the court, among other things, ordered plaintiff’s counsel to supplement her responses to defendants’ discovery requests by March 6, 2015,  and to file, by March 2, 2015, her opposition to the motion for sanctions to address the request for fees and costs. See Minutes [doc. # 31] and Notice of Motion Setting [doc. # 29].
On March 2, 2015, plaintiff filed his opposition memorandum. On March 4, defendants filed their reply. Thus, the matter is ripe.
Rule 37 of the Federal Rules of Civil Procedure specifies that,
[i]f a party or a party's officer, director, or managing agent . . . fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the ...