United States District Court, E.D. Louisiana
ORDER & REASONS
E. FALLON, U.S. DISTRICT COURT JUDGE.
the Court is Plaintiff’s Emergency Motion for Discovery
Sanctions, R. Doc. 95, which is supplemented by several
memoranda in support of the Motion, R. Docs. 176, 232. The
motion is opposed. R. Docs. 199, 237. The Court now rules as
case arose out of a February 16, 2017 incident that occurred
at the intersection of South Peters Street and Poydras Street
in downtown New Orleans, Louisiana. R. Doc. 84 at 3.
Defendant Jazz Casino Company, LLC d/b/a Harrah’s New
Orleans Casino (“Harrah’s”) hired an
independent contractor, Alabama Wildlife Removal, LLC
(“AWR”) to remove birds from palm trees outside
of its casino. R. Doc. 84 at 3. This job required the use of
a manlift. As the manlift was moving from one group of palm
trees on South Peters Street to another group of palm trees
on Poydras Street, it struck Plaintiff Carla Echeverry, a
pedestrian waiting at the crosswalk of the intersection. R.
Doc. 49 at ¶ 9. As a result, Plaintiff sustained a
comminuted fracture of her lower right leg and ankle. R. Doc.
84 at 3. Plaintiff sued Harrah’s; AWR; Richard Padgett,
the owner of AWR (“Padgett”); and Richard Tyler,
the AWR employee who was operating the manlift
(“Tyler”). R. Doc. 84 at 4. AWR, Padgett, and
Tyler failed to appear in this lawsuit, and the Court entered
a preliminary default against them. R. Doc. 42. Plaintiff
alleged that Harrah’s was negligent for the following
reasons, among others: failing to properly supervise AWR or
provide sufficient barricades and equipment; hiring a
contractor which it knew or should have known was
incompetent; failing to investigate and vet its contractors;
and hiring a contractor which it knew or should have known
was uninsured. R. Doc. 49 at ¶ 14. For a more detailed
recitation of the underlying facts of the case, see the
Amended Pretrial Order. R. Doc. 158.
April 23, 2019, less than one week before this case was
initially set to be tried by a jury, Harrah’s produced
numerous, never-before-seen documents that were allegedly
crucial to Plaintiff’s case. R. Doc. 95-1 at 1. At the
same time, Harrah’s indicated that there were other
documents but did not produce them, citing privilege. R. Doc.
95-1 at 2. Plaintiff requested sanctions for this late
production. R. Doc. 95-1 at 10. Instead, the Court ordered a
short continuance of the trial to allow Plaintiff to do the
following: conduct discovery about the new documents which
were produced; depose witnesses identified in those
documents; and conduct discovery to determine if
Harrah’s failure to produce the new documents was
“substantially justified” as required to avoid
sanctions under Rule 37(c)(1) of the Federal Rules of Civil
Procedure. R. Doc. 176 at 3.
10, 2019, Harrah’s filed under seal, for the
Court’s in-camera review, a privilege log and documents
that Harrah’s claimed were privileged. R. Doc. 132. On
June 19, 2019, the Court issued an Order & Reasons,
revisiting the issue of sanctions. R. Doc. 133. In it, the
Court sanctioned Defendants as follows: “Defendants
shall deliver Plaintiff its privilege log and associated
documents that were filed under seal for in camera
review.” R. Doc. 133 at 7. The Court reviewed the
documents that were filed under seal and denied
Harrah’s motion to keep those documents sealed;
instead, Harrah’s was ordered to deliver those
documents to Plaintiff.
jury trial that began on August 5, 2019, the jury returned a
verdict for Plaintiff and against AWR and Harrah’s,
finding AWR 50 percent responsible and Harrah’s 49
percent responsible with respect to causing Plaintiff’s
accident. R. Doc. 229. The jury thus awarded Plaintiff a
total of $1, 262, 000 to compensate her for her damages. R.
Doc. 229 at 1.
now revisits her Motion for Sanctions. R. Doc. 95. In the
Motion, Plaintiff seeks sanctions because Harrah’s
“late production of crucial information, less than one
week before trial, is unfair and prejudicial to the
plaintiff, ” R. Doc. 95-1 at 2, and “[t]he
parties and the Court could have been saved a lot of time,
money, and effort had Harrah’s simply been forthcoming,
” R. Doc. 95-1 at 9. Plaintiff subsequently
supplemented the Motion for Sanctions, stating the Court
should impose sanctions on Harrah’s “for its
consistent failure to supplement discovery, ” and
alleging that Harrah’s “still has not produced
documents it knows to exist which are crucial to
plaintiff’s case.” R. Doc. 176 at 1. Finally,
after the completion of trial, Plaintiff filed a post-trial
supplemental memorandum in support of the Motion for
Sanctions to include exhibits detailing the timesheets and
expense itemization of Plaintiff’s attorneys. R. Doc.
232. In the post-trial supplemental memorandum, Plaintiff
reiterates that testimony at trial supports the claim that
Harrah’s failed to supplement discovery as it was
required to do. R. Doc. 232 at 2.
opposition, Harrah’s argues that Plaintiff keeps
asserting that Harrah’s has not produced documents it
knows to exist that are crucial to Plaintiff’s case,
but “plaintiff has no evidence to support her
contention that additional documents exist that have not been
produced.” R. Doc. 199 at 2. Moreover, Harrah’s
contends it fully complied with its obligation under Federal
Rule of Civil Procedure 26(e) by providing Plaintiff with all
of the documents and privilege log when the existence of
these documents was discovered in late April 2019. R. Doc.
199 at 13. Finally, Harrah’s reiterates that the
continuance of trial cured any potential prejudice to
Plaintiff by the late production of documents. R. Doc. 237 at
1. Harrah’s thus asserts that sanctions, consisting of
attorney’s fees and costs, should not be awarded. R.
Doc. 237 at 2.
LAW AND ANALYSIS
to Federal Rule of Civil Procedure 37(c):
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 trial, unless the ...