United States District Court, E.D. Louisiana
ORDER AND REASONS
MORGAN, UNITED STATES DISTRICT JUDGE.
the Court is Respondent Saskia O. Eubanks' Motion for
Sanctions and to Vacate Protective Order. Petitioner Ivan
Eubanks filed an objection. For the following reasons,
Respondent's motion is GRANTED IN PART
and DENIED IN PART.
February 10, 2017, Petitioner filed his Verified Complaint
for Return of Children to the Cayman Islands pursuant to the
Hague Convention on the Civil Aspects of International Child
Abduction. This matter was tried before the Court,
sitting without a jury, on May 11th and May 12th of
2017. On July 31, 2017, the Court issued its
Findings of Fact and Conclusions of Law denying Mr.
Eubanks' request for the return of the
3, 2017, Ms. Eubanks filed her Motion for Sanctions and to
Vacate Protective Order. Ms. Eubanks requests that the Court
award sanctions against the Petitioner, and his counsel, for
their abuse of the discovery process. Ms. Eubanks also requests
that the Court vacate the Joint Protective Order entered into
on June 6, 2017.
Motion for Sanctions
Eubanks requests that the Court award sanctions against the
Petitioner, Mr. Eubanks, and his counsel, for their abuse of
the discovery process. As explained in the Court's July 31,
2017 Findings of Fact and Conclusions of Law, Mr. Eubanks
clearly did not comply with his discovery obligations.
February 24, 2017, the Court entered an Order setting a trial
date on Mr. Eubanks' Petition and ordering the parties to
comply with certain pretrial deadlines, including propounding
written discovery by March 3, 2017 and providing responses to
written discovery by March 10, 2017. Ms. Eubanks, in
compliance with the Order, propounded Interrogatories and
Requests for Production of Documents to Mr. Eubanks on March
3, 2017. Ms. Eubanks requested that Mr. Eubanks produce any
and all correspondence between himself any prospective
employer from January 1, 2015 to present. Ms.
Eubanks' Interrogatories and Requests for Production of
Documents clearly were not limited only to applications
submitted during this time period but also requested
any correspondence between Mr. Eubanks and a
prospective employer. By the terms of the February 24, 2017
Order, Mr. Eubanks was required to produce the correspondence
requested by March 10, 2017. He was obligated to supplement
or correct his responses through the date of the trial under
Federal Rule of Civil Procedure 26(e).
Eubanks' responses to the requests for production and his
responses to the interrogatories did not include the names of
any individuals or entities he corresponded with regarding
employment during 2016 or 2017. Nor did his response include
copies of correspondence between himself and any prospective
employer during 2016 or 2017.
first day of trial, May 11, 2017, Mr. Eubanks testified on
direct that he did not apply for any jobs during 2016. On
cross-examination, Mr. Eubanks admitted that he applied for a
position with the United States Department of State in March
2016. After the trial recessed for the day, in a conference
in chambers with all counsel, the Court ordered Mr. Eubanks
to search his emails and provide Ms. Eubanks and her counsel
with complete responses to her Interrogatories and Requests
for Production of Documents the following morning.
following morning, the Court began the day by questioning
counsel for Mr. Eubanks about the documents the Court had
ordered him to produce. Counsel for Mr. Eubanks first
responded that all of the documents had already been produced
and then admitted that he did have three additional
documents. At the end of the second day of trial,
the Court still was not satisfied that Mr. Eubanks had
produced all responsive documents. The Court ordered Mr.
Eubanks to retain a third-party vendor to perform a complete
search of his emails to identify any correspondence with
potential employers during 2016. Only when the Court
ordered that a third party perform the search were the vast
majority of the documents requested by Ms. Eubanks finally
result of these untimely disclosures, Ms. Eubanks requests
that the Court award sanctions against the Petitioner, Mr.
Eubanks, and his counsel, pursuant to Federal Rule of Civil
Procedure 37(c)(1)(A) because of their failure to provide
documents and information as required by Rule 26(a) or (e).
Mr. Eubanks argues the Federal Rules do not allow for the
imposition of sanctions in this situation because Ms. Eubanks
did not file a motion to compel a more complete response to
her discovery requests.
37(c)(1) of the Federal Rules of Civil Procedure provides:
If a party fails to provide information or identify a witness
as required by Rule 26(a) or (e), the party is not allowed to
use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or
instead of this sanction, the court, on motion and after
giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions including any of
the orders listed in Rule37(b)(2)(A)(i)-(vi).
clear from the face of the rule that “Rule 37(c)(1) is
intended to prevent the practice of ‘sandbagging'
an opposing party with new evidence” by failing to
produce documents the party wishes to use in his own
case. Rule 37(c)(1) does not apply to the
situation now before the Court, as Mr. Eubanks clearly was
not attempting to use evidence of his continued search for
employment in the United States during 2016 as evidence in