United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Dixie Electric Membership
Corporation's (“DEMCO”) Motion for Discovery
Sanctions Pursuant to Rule 37 (R. Doc. 28) filed on August 9,
2017. The Court ordered Bailey Cable TV, Inc. (“Bailey
Cable”) to file a response on an expedited basis. (R.
Doc. 29). Bailey Cable filed an Opposition. (R. Doc. 30).
DEMCO filed a Reply. (R. Doc. 34). The Court held oral
argument. (R. Doc. 33).
28, 2017, the Court ordered Bailey Cable to respond to
DEMCO's Requests for Production without objections, with
the exception of any applicable privileges and/or immunities,
by July 12, 2017. (R. Doc. 26 at 6).
now represents that while it “provided additional time
for Bailey [Cable] to produce responses beyond the
Court's July 12, 2017, ” Bailey Cable did not
provide responses as of the date of the instant Motion. (R.
Doc. 28-1 at 3). DEMCO seeks sanctions pursuant to Rule
37(b)(2) of the Federal Rules of Civil Procedure. More
specifically, DEMCO requests “that Bailey [Cable] be
prohibited from introducing any documents or exhibits of any
kind into evidence at the trial of this matter, regardless of
whether in support or in opposition to its own or to any
other parties' claims and defenses at issue in this
litigation, ” and that the Court award DEMCO its costs
and attorney fees incurred in bringing the Motion. (R. Doc.
28-1 at 3).
August 22, 2017, Bailey Cable filed its Opposition. (R. Doc.
30). Bailey Cable attached a copy of its Supplemental and
Amended Responses to DEMCO's First Set of Discovery,
including the outstanding Requests for Production, served on
August 22, 2017. (R. Doc. 30-1). Bailey Cable represents that
its owner and president, Mr. David Bailey, has been occupied
with the care of his wife since the Court's Order. Bailey
Cable further represents that Mr. Bailey was “hopeful
at the time of the previous filing that her condition was
improving enough to allow him to refocus on Bailey Cable
business, including this litigation and completion of Bailey
Cable's discovery responses in the time frame set by the
Court, ” but his wife's “recovery and related
conditions have continued to keep him occupied with her care
at home, and prevented his attention to business
matters.” (R. Doc. 30 at 2).
August 25, 2017, DEMCO filed a Reply indicating that the
production of documents by Bailey Cable remained
insufficient. (R. Doc. 34).
Court held oral argument on August 30, 2017. At oral
argument, Bailey Cable requested an additional 20 days to
search its records for responsive documents.
Law and Analysis
of the Federal Rules of Civil Procedure provides for the
imposition of sanctions against a party who fails to obey an
order to provide or permit discovery. Fed.R.Civ.P.
37(b)(2)(A). As requested by DEMCO, sanctions may include
“prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence.” Fed.R.Civ.P.
37(b)(2)(A)(ii). Instead of or in addition to sanctions
permitted under Rule 37(b)(2)(A), “the court must order
the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorney's
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).
Court has considered Bailey Cable's representations
regarding the continued illness of Mr. Bailey's wife, as
well as the fact that Bailey Cable has responded to the
discovery requests at issue. Furthermore, the deadline to
complete discovery in this action is two months away, and
there is no indication in the record that DEMCO will be
unduly prejudiced by Bailey Cable's untimely response to
the discovery requests at issue. In light of the record and
the procedural posture of this action, the Court will not
issue sanctions pursuant to Rule 37(b)(2)(A) at this time.
requested, the Court will provide Bailey Cable with 20
additional days to locate and provide any additional
documents within its possession, custody, or control that are
responsive DEMCO's requests for production. In addition
to supplementing its discovery responses at the end of this
20-day period, Bailey Cable must submit to DEMCO, and file
into the record, an affidavit signed by Mr. Bailey indicating
the efforts undertaken by Bailey Cable to locate and produce
all responsive documents within its possession, custody, or
control, and certifying that Bailey Cable has made a good
faith effort to locate and produce all responsive documents
within its possession, custody, or control.
extent Bailey Cable fails to produce all responsive documents
within its possession, custody, or control, Bailey Cable will
be in violation of (1) the Court's June 28, 2017 Order on
DEMCO's Motion to Compel and (2) the instant Order on
DEMCO's Motion for Sanctions. Any production of
responsive documents after the deadline provided by this
Order will subject Bailey Cable to sanctions pursuant to Rule
37(b)(2)(A), including the sanction of “prohibiting the
disobedient party from supporting or opposing designated
claims or defenses, or from introducing designated matters in
evidence” pursuant to Rule 37(b)(2)(A)(ii).
is no dispute that Bailey Cable failed to comply with the
Court's June 28, 2017 Order. Accordingly, Rule
37(b)(2)(C) requires the Court to issue an award of
reasonable fees incurred by DEMCO in bringing the instant
Motion for Sanctions. Despite having had the opportunity to
do so, Bailey Cable did not seek any appropriate relief from
the Court with respect to the June 28, 2017 Order, including
seeking an extension of the deadline to provide the responses
at issue. Accordingly, the Court finds no basis for
concluding that Bailey Cable's failure to comply with the
Court's Order was substantially justified or that other
circumstances make an award of expenses unjust. While the
Court understands that certain personal matters have
contributed in part to these circumstances, that illness was
part of the reason expenses were not ordered in this