The opinion of the court was delivered by: Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiffs Jeni Porche and Margaret Hosty ("plaintiffs") move to obtain discovery sanctions against defendants: Roger Oden, Debra Conway, Stuart Fagan, Paul Keys, Peggy Woodard, Harry Klein, William McGee, Kristi DeLaurentis, Lorine Samuels, Kathleen Orr, Jack Beaupre, Bruce Friefeld, Thomas Stepke, Deborah Holdstein, Rashidah Muhammad, Joyce Kennedy, and Lorraine Sibbet ("defendants"), all of whom were faculty or staff at Governor State University ("GSU") during 2000 to 2002 and /or their counsel. Plaintiffs allege that defendants have failed to produce documents ordered to be produced by this Court, have failed to preserve documents that defendants knew would be relevant, and have fabricated evidence in the process of disclosing documents for discovery. For the reasons that follow, the motion for sanctions against the defendants is granted [dkt. 221].
Both plaintiffs enrolled as graduate students at GSU in the summer of 1999. From April to October 2000, plaintiffs worked on the GSU newspaper called "The Innovator." During that time, a number of articles were published in "The Innovator" that were critical of GSU, its faculty, staff and administrators. Plaintiffs allege that as a result of their writings in "The Innovator"defendants unilaterally changed the graduation requirements regarding requisite courses and composition of their thesis committees. In 2002, plaintiffs filed this case alleging, among other claims, that defendants unlawfully retaliated against plaintiffs' exercise of their First Amendment rights that resulted in their inability to complete their master's degree in English at GSU. Specifically, plaintiffs argue that defendants changed the rules by requiring the chair of their thesis committees to be tenured, or at least to be a tenure track member of the faculty. Plaintiffs allege that these changes made it nearly impossible for them to graduate because of either the tenured faculty's conflict with plaintiffs' journalistic activities or their unfamiliarity with the subject matter of plaintiffs' theses. Defendants, however, maintain that these changes were made on all English masters candidates and that plaintiffs were not singled out in any way.
After plaintiffs filed their fourth amended complaint in November of 2007, defendants were served with the First Request for Production of Documents on January 23, 2008.*fn1 Several of the requests for production were objected to by defendants. On May 9, 2008, the Court resolved all disputes requiring further production by defendants.*fn2 Despite the Court's ruling, one dispute later resurfaced in regard to request number 29 ("RFP 29"). That dispute became the subject of this motion.
RFP 29 states that "[a]ll documents referencing approval for proposed or actual student theses submitted or intended to be submitted in pursuit of a Master's Degree in English at GSU, including, but not limited to, the frontispieces of archived copies of such theses in the GSU Library" be produced.*fn3 At the May 9, 2008 hearing, following defendants' initial objection to RFP 29 as being overly broad and unduly burdensome,*fn4 the Court limited the request to the "title sheets of all theses," with "a list of the thesis, including the name of the candidate and the advisor."*fn5 During that hearing, defendants stated that these documents had already been produced and sent to plaintiffs in April of 2008.*fn6 In response, plaintiffs did not state otherwise and made no objection to limiting RFP 29, thus, the issue over RFP 29 appeared to be settled.
It was only in August 2008 that RFP 29 specifically came up again in communications between the parties.*fn7 The actual production that defendants said occurred in April, prior to the May 9, 2008 hearing, was not actually made until August.*fn8 Prior to August, all communications between plaintiffs and defendants referenced other specific discovery requests still pending and did not mention RFP 29 or any lack of production relating to RFP 29. This is best illustrated by the following letters and exchanges between both parties that led up to the dispute over RFP 29.
On July 11, 2008, plaintiffs sent a letter requesting, among other discovery requests, a status on the "additional discovery"ordered by the Court back in May.*fn9 Defendants responded to that letter by agreeing to update plaintiffs' counsel the following week.*fn10 Two weeks later, having not received that update, plaintiffs sent another letter inquiring into the "additional discovery compelled by the order entered on May 9, 2008" and discussed seeking sanctions as a result of defendants' failure to comply with discovery.*fn11 Defendants then produced thirty-six title pages, which they called "frontispieces," and no approval forms relating to RFP 29.*fn12 In response to this production on August 11, 2008, plaintiffs specifically requested the documents relating to RFP 29, confirming that no approval forms (which plaintiffs called frontispieces) had been sent and stated that only thirty-six title pages were produced days earlier.*fn13
By the end of August 2008 it had become evident, through the letters exchanged, that both parties had two different opinions as to what documents the "frontispieces" actually were. From those letters, it also became clear that the documents plaintiffs were seeking were actually a whole new class of documents called the "thesis approval forms."*fn14 These approval forms were what plaintiffs had been calling "frontispieces." Once this issue came to light, defendants stated in their August 15, 2008 letter that the "thesis approval forms" would be disclosed by the following week.*fn15
The following week, defendants produced about forty original thesis approval forms.*fn16 Thirty-one of these forms were "final" thesis approval forms and ten were "proposed" thesis approval forms.*fn17
According to a list also produced by defendants, the production only covered forty of the 101 English master's candidates enrolled from 2000 to 2007.*fn18 This was only 23% of the total production being sought because there would have been a total of 202 thesis approval forms, two for each student enrolled.*fn19 The forty forms produced to plaintiffs only included one version of the two forms for each student. Because all forty forms submitted to plaintiffs were originals, each form contained signatures for each member of the thesis committee. That included the two faculty readers, the faculty chairperson and the student submitting the approval form along with the title of the thesis.*fn20
On August 29, 2008, because defendants had disclosed none of the remaining thesis approval forms, plaintiffs served defendants with a set of interrogatories to illicit the same information from the remaining 162 thesis approval forms.*fn21 In October 2008, defendants responded to these interrogatories by producing twenty-seven more thesis approval forms. Of the twenty-seven thesis approval forms produced, only six were originals containing the signatures of each person involved on each thesis committee. The remaining twenty-one were not originals because the signature line was crossed out and all the names of the members on the thesis committees were hand-written in by one person. The forms were also not dated. When defendants produced these twenty-seven forms, they admitted that the remaining forms could not be found or produced and that the new forms being produced were based on information compiled by Dean Eric Martin because, defendants asserted, none of the defendants had any knowledge or direct access to the information required to answer the interrogatories.*fn22
In response, plaintiffs wrote to defendants expressing their concern over the insufficiency of the production. Plaintiffs noted the lack of genuine authenticity of the forms and their concern over having Dean Martin, a non-party, essentially fill in the information that defendants argued, only weeks earlier, could not be obtained by the defendant faculty members on these committees.*fn23 In an email response on November 12, 2008, defendants explained that the defendant faculty no longer had access to the originals and that the information would be compiled by Dean Martin in a chart containing all the information plaintiffs sought in their interrogatories.*fn24 The email further stated that the chart would be authenticated by the defendant faculty readers and chairpersons as well as by the Dean.*fn25
Following these email exchanges, defendants sent a revised answer to Plaintiffs First Set of Interrogatories. The revised response included a chart that provided the name of each master's in English candidate from 2000 to 2007, the name of each faculty member on his or her thesis committee along with the designation of whether the faculty member was tenured, tenure-tracked or neither (hereinafter referred to as "the Chart"). It should be noted that the Chart does not appear to be complete because it does not contain a full list of all readers and/or faculty members on each student's thesis committee, which was requested through plaintiffs' interrogatories.*fn26 From October until plaintiffs' filing of this motion there were no additional documents or original thesis approval forms produced to plaintiffs in regard to RFP 29.
Under Rule 37 of the Federal Rules of Civil Procedure, a motion for discovery sanctions can be proper in two different situations. The first being for a failure to comply with a court order, oral or written, which has already been made to compel production.*fn27 The second being when a party destroys or fails to preserve evidence over which it has control and reasonably knows or could foresee would be material to a potential legal action.*fn28 In the present case, plaintiffs argue that defendants committed both actions warranting an award of sanctions for either violation.
Under Federal Rule 37(b)(2), a court has authority to sanction a party when that party has failed to comply with an ...