The opinion of the court was delivered by: Judge Wayne R. Andersen
Magistrate Judge Geraldine Soat Brown
MEMORANDUM OPINION AND ORDER
Judges do not enjoy entering sanctions against parties or attorneys. But sometimes a party's failure to comply with its obligations under the Federal Rules of Civil Procedure justifies serious consequences. This, regrettably, is such a situation. For the reasons set out below, defendant CBS Broadcasting, Inc.'s Motion for Sanctions [dkt 50] is granted in part and denied in part without prejudice.
This case involves a claim of breach of privacy. In their Amended Complaint, plaintiffs Jill and Robert Webb ("the Webbs") allege that they, Craig Stebic (Jill Webb's brother) and NBC broadcaster Amy Jacobson were videotaped without their consent by defendant Tracy Readon (a neighbor of Stebic) and/or CBS employee Mike Puccinelli, and that defendant CBS Broadcasting Inc. ("CBS") broadcast the videotape. (Am. Compl.) [Dkt 30.] The Webbs assert state law claims of intrusion upon seclusion and intentional infliction of emotional distress. (Id.)
On January 26, 2010, the District Judge referred the case to this court for discovery supervision. [Dkt 45.] Consistent with this court's standard practice, an initial status date was set for February 18, 2010, and the parties were required to submit an initial status report. [Dkt 47.]*fn1 The initial status report filed by the parties and signed electronically by the Webbs' attorney (John De Rose) and CBS's attorney (Brian Sher), stated in part:
Both parties have promulgated written discovery. CBS responded to plaintiffs' written discovery requests on November 25, 2009. Plaintiffs have agreed to provide their responses to CBS's written discovery requests, which were served on November 19, 2009, not later than February 18, 2010, the date of the Initial Status Conference before this Court. (Initial Status Report at 2.) [Dkt 48.] Thus, the initial status report told the court three things: (1) both sides were aware that the initial status hearing was set for February 18, 2010; (2) the Webbs acknowledged that their discovery responses were two months overdue and agreed to produce them "not later than" February 18; and (3) CBS had served its responses to written discovery several months earlier.
As scheduled, the case was called for status hearing on February 18, 2010. CBS's local counsel was present and its primary counsel traveled from the District of Columbia for the hearing. No one appeared on behalf of the Webbs. Because the Webbs' discovery responses had not yet been served, CBS's counsel asked for an order compelling production. Notwithstanding the fact that the Webbs' counsel had agreed to produce the responses "not later than" February 18, the court allowed an additional day, ordering the Webbs' responses by February 19, 2010, expecting that the responses might already be in the mail. [Dkt 49.]
On February 26, 2010, CBS filed the present motion, stating that February 19 had come and gone but the Webbs served no discovery responses. (Def.'s Mem. Mot. Sanctions at 2.) [Dkt 50, 51.] The present motion requests an order precluding the Webbs from relying on any documents or the testimony of any witnesses beyond those disclosed by CBS. (Id. at 5.) Alternatively, it requests an order for full production and an award of expenses including attorneys' fees. (Id. at 5-6.) The motion was noticed for presentment on March 5, 2010. [Dkt 53.]
On March 2, 2010, CBS filed a supplement to its motion, stating that it had received discovery responses from the Webbs with a proof of service showing mailing on February 26. (Def.'s Suppl. Mem. at 1.) [Dkt 54.] But, in addition to being late, the interrogatory answers were not signed or verified, and no documents were produced. (Def.'s Suppl. Mem., Ex. A.) The Webbs responded to each document request 1 through 9 by stating, "None. Investigation continues." They failed to respond to document requests 10 through 29 in any way.
The Webbs responded to CBS's motion on March 4, 2010, acknowledging that their responses were "tardy" but saying that the Webbs' counsel had sent the discovery responses "on February 26, 2010, before they received notice" of the motion, not after. (Pls.' Resp. Mot. Sanctions at 3, emphasis in original.) [Dkt 55.] Also, they argued, they did not wilfully violate the February 18 order because Jessica Hill, the attorney working on the discovery responses, does not get the electronic filing notices, so she was not aware of the order entered on February 18 until she received the motion for sanctions. (Id. at 4-5.) Notably, the only attorney of record for the Webbs at that time was Mr. De Rose. The Webbs argued that an unidentified "law clerk" failed to docket dates. (Id. at 4.)
Ms. Hill appeared at the hearing the next day on CBS's motion for sanctions. The reason Ms. Hill was not getting electronic notice of orders and filings in this case is that she had never filed an appearance as counsel, as required by Local Rule 83.16.*fn2 Again, she blamed "staffing issues" for failing to comply with orders.
As to the lack of documents, Ms. Hill again maintained that the Webbs have "no documents" responsive to the requests, even though they are claiming as damages medical treatment for the anxiety allegedly caused by CBS's actions. Ms. Hill argued that CBS could get any documents supporting the Webbs' medical damages by subpoenaing the providers. The motion was continued for hearing on March 9, 2010, and the Webbs were ordered to provide an affidavit regarding their search for documents by that date. [Dkt 62.]
At the hearing on March 9, 2010, Mr. De Rose appeared for the Webbs. He tendered to the court two identical affidavits, one signed by Jill Webb and one signed by Robert Webb, which state in relevant part:
2. I thoroughly read the [defendant's] Interrogatories and Requests for Production of Documents, understood each of them, and answered them truthfully and completely.
3. In response to the Requests for Production of Documents, I considered each request and did a full search to see if I was in possession of any of the documents requested.
4. I was not and am not in possession or control of any of the ...