The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
REPORT AND RECOMMENDATION
TO: The Honorable Marvin E. Aspen United States District Court
Currently before the Court is Plaintiffs' Motion for Sanctions,
pursuant to Rule 37 of the Federal Rules of Civil Procedure.
Plaintiffs claim that, in response to one of their production
requests, Defendants grossly exaggerated the number of documents
that were responsive, causing Plaintiffs to incur unnecessary
fees and costs. For the reasons set forth below, the Court
recommends that Plaintiffs' Motion be granted in part.
On April 7, 2004, Plaintiffs requested that Defendants produce
Defendant IAM's policies or procedures concerning compliance with
the Labor Management Reporting and Disclosure Act ("LMRDA"). Defendants objected to the request on the ground that
it was overly broad and unduly burdensome. During a Rule 37.2
conference, Defendants informed Plaintiffs that the responsive
documents could fill a warehouse, and that the documents were too
numerous to be photocopied and mailed to Chicago. Faced with this
knowledge, Plaintiffs counsel agreed to fly to Washington D.C. to
inspect the documents.
Prior to Plaintiffs' counsel's scheduled visit, Defendants'
counsel read through the documents in question and managed to
winnow down the responsive and relevant documents to a mere two
boxes of documents. Defendants did not communicate this
information to Plaintiffs.
On July 1, 2004, attorney Jeffrey Naffziger, accompanied by
Plaintiff Jon Baker, flew to Washington D.C. for the scheduled
inspection. Based upon Defendants' representation concerning the
number of responsive documents involved, Mr. Naffziger set aside
two business days for the inspection. The actual inspection
lasted only two hours. Plaintiffs' counsel attempted to work on
other matters while in Washington D.C., but was unable to do so.
Plaintiffs claim that Defendants should have photocopied and
mailed the responsive documents to them in Chicago. By
misrepresenting the number of documents involved, Defendants
caused Plaintiffs to incur unnecessary and substantial costs.
Plaintiffs have filed this Motion for Sanctions, arguing that Federal Rule of Civil Procedure 37 authorizes courts to
award sanctions to punish a party's abuse of the discovery
process, citing First Interstate Bank v. National Republic Bank
of Chicago, No. 80 C 6401, 1986 WL 6928, at *7 (N.D. Ill. June
10, 1986) (granting expenses and fees for counsel's travel, where
opposing party caused counsel to travel unnecessarily).
Plaintiffs seek $1,980.50 in attorneys' fees;*fn1 $374.69
for Mr. Naffziger's costs; and $526.95 for Mr. Baker's expenses,
for a total of $2,882.14.
Defendants counter that First Interstate is readily
distinguishable on numerous grounds, not the least of which is
the fact that the sanctioned party violated both the Federal
Rules of Civil Procedure and (more importantly) a court order.
Defendants further note that the Federal Rules of Civil Procedure
do not require a party to photocopy and mail responsive discovery
documents, and that there was no court order in this case
compelling them to do so.
The Court agrees that Defendants' antics*fn2 with regard
to the discovery in question did not violate a court order.
Therefore, sanctions pursuant to Rule 37 would be inappropriate.
See FineLine Distributors, Inc. v. Rymer Meats, Inc., No. 93 C
5685, 1994 WL 376283, at *4 (N.D. Ill. July 15, 1994) ("the cases
interpreting Rule 37(b) clearly establish that the Court should
only issue sanctions pursuant to Rule 37(b) for a violation of a
court order regarding discovery.")
However, the Court is free to exercise its power to impose
sanctions pursuant to 28 U.S.C. § 1927. Parakevopoulos v.
Chalmers, No. 86 C 7834, 1989 WL 36219, at *1 (N.D. Ill. April
7, 1989) (noting that "[s]anctions under § 1927 may be imposed
sua sponte by the court.") Section 1927 provides that "[a]ny
attorney . . . who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess cost, expenses, and attorneys' fees
incurred because of such conduct." 28 U.S.C. sec. 1927. A lawyer
risks sanction by pursuing "a path that a reasonably careful
attorney would have known after appropriate inquiry to be
unsound." Ordower v. Feldman, 826 F.2d 1569, 1574 (7th Cir.
1987) (sanctions are equally permissible if the attorney acts
intentionally, recklessly, or even negligently.)
The Court finds that Defendants' misrepresentations needlessly
caused Plaintiffs to incur substantial costs; a minimal amount of
investigation would have revealed the fallacy of their assertion.
Defendants were, at best, negligent in failing to notify
Plaintiffs that they had grossly overestimated the number of documents responsive to Plaintiffs' discovery
request. As such, sanctions are appropriate, not because
Defendants violated an order or duty to photocopy and mail the
responsive documents, but because Defendants either intentionally
or negligently misrepresented facts, which they could have
readily verified. In doing so, Defendants altered the playing
field at the Rule 37.1 conference, and dramatically increased the
odds that Plaintiffs would (at least reluctantly) agree to make
the investigative trip out to Washington D.C. The Court finds it
unlikely that any party, least of all these Plaintiffs, would
have agreed to travel thousands of miles, incurring needless
costs and losing precious hours, to review two very portable
boxes or responsive documents. The Court need not decipher
whether Defendants intentionally misled Plaintiffs from the
onset, or simply failed to notify Plaintiffs when it became
obvious that the documents would not "fill a warehouse". In
either circumstance, Defendants' counsel's conduct was patently
unreasonable and vexatiously increased the costs of this
litigation, and they not Plaintiffs should bear the brunt of
the costs involved.
The Court recommends that Defendants' counsel be ordered to
reimburse Plaintiffs for their reasonable fees and costs. The
Court notes that most of Plaintiffs' costs are reasonable; the
requested (and documented) airfare is relatively inexpensive for business travel, and neither Mr. Naffziger nor Mr. Baker
requested reimbursement for hotel stays. The Court recommends
that Plaintiffs be awarded the costs incurred for Messers.
Naffziger's and Baker's airfare and meals, as well as Mr.
Naffziger's Metro fares and Internet café charges, and Mr.
Baker's car rental, gas, and parking. However, the Court finds
excessive Mr. Naffziger's request for $75.00 for four days of
parking at O'Hare airport (particularly since he anticipated that
his business in Washington D.C. would last only two business
days), and halves the request.
The Court also recommends that Plaintiffs' attorneys' fees for
the time Mr. Naffziger spent traveling to and from Washington
D.C., be granted, but that fees*fn3 for Mr. Naffziger's
unanticipated down-time in Washington D.C. and for the time Mr.
Naffziger spent traveling within Washington D.C be denied.
Therefore, the Court recommends that Plaintiffs' Motion be
granted, in part; and that Plaintiffs be ...