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Eubanks v. Eubanks

United States District Court, E.D. Louisiana

August 4, 2017

IVAN EUBANKS
v.
SASKIA O. EUBANKS

         SECTION: “E” (1)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is Respondent Saskia O. Eubanks' Motion for Sanctions and to Vacate Protective Order.[1] Petitioner Ivan Eubanks filed an objection.[2] For the following reasons, Respondent's motion is GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         On 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.[3] This matter was tried before the Court, sitting without a jury, on May 11th and May 12th of 2017.[4] On July 31, 2017, the Court issued its Findings of Fact and Conclusions of Law denying Mr. Eubanks' request for the return of the children.[5]

         On July 3, 2017, Ms. Eubanks filed her Motion for Sanctions and to Vacate Protective Order.[6] Ms. Eubanks requests that the Court award sanctions against the Petitioner, and his counsel, for their abuse of the discovery process.[7] Ms. Eubanks also requests that the Court vacate the Joint Protective Order entered into on June 6, 2017.[8]

         LAW AND ANALYSIS

         I. Motion for Sanctions

         Ms. Eubanks requests that the Court award sanctions against the Petitioner, Mr. Eubanks, and his counsel, for their abuse of the discovery process.[9] 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.

         On 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.[10] 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.[11] 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).

         Mr. 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.[12]

         On the 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.

         The following morning, the Court began the day by questioning counsel for Mr. Eubanks about the documents the Court had ordered him to produce.[13] 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.[14] 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.[15] Only when the Court ordered that a third party perform the search were the vast majority of the documents requested by Ms. Eubanks finally produced.[16]

         As a 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.

         Rule 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).[17]

         It is 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.[18] 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 ...


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