JOHNSON, Circuit Judge:
When the defendant, United States of America, failed to properly respond to the plaintiffs' discovery requests in the case sub judice, the district court ordered the Government to produce previously requested documents and respond to unanswered interrogatories. The court also ordered the Assistant United States Attorney ("AUSA"), Mr. Randell Means, to personally reimburse the plaintiffs for attorney's fees which arose from the Government's discovery abuse. When the Government disobeyed the district court's order to fulfill its discovery obligations and attempted to deceive the court and the plaintiffs into believing that certain documents properly requested either did not exist or were not requested, the district court, exercising authority granted in Rule 37 of the Federal Rules of Civil Procedure, deemed that the liability facts of the plaintiffs' case were established for the purposes of the case. The Government and Mr. Means aver that the district court abused its discretion in sanctioning them. We disagree and therefore affirm.
I. Facts and Procedural History
On October 4, 1988, Brenda Chilcutt Wortham,
Ms. Wortham and HIC later commenced this action in the Northern District of Texas, suing under the Federal Torts Claims Act. In its initial scheduling order, filed on July 17, 1991, the district court stated that "[s]hould any party or counsel fail to cooperate in doing anything required by this order to be done, such party or counsel or both will be subject to sanctions, including dismissal or entry of default without further notice." R. at 26. In the court's memorandum attached to the scheduling order, entitled "Special Pretrial Instructions," the court informed the parties that it expected counsel for each party to cooperate fully in the discovery process. The court further warned that it would not tolerate discovery abuses, stating that "[u]nnecessary discovery or unreasonable delay may subject the infracting party to sanctions and the payment of costs." R. at 28. The court admonished the parties in the same manner in revised scheduling orders which were filed on February 27, 1992, and March 9, 1992.
On March 24, 1992, Ms. Wortham served interrogatories and requests for production of documents and things on Randell Means, the AUSA in charge of the case.
On May 19, 1992, twenty-six days after the Government's discovery answers were due, Ms. Robbins filed a motion to compel and a motion for sanctions. The district court scheduled a hearing on those motions for May 22. Mr. Means served Ms. Robbins with answers to some of the interrogatories and objected to others the morning of the hearing. However, at the hearing Ms. Robbins complained, not only about the tardiness of the recently-supplied answers and objections, but she also asserted that a number of the answers to the interrogatories were incomplete.
The district court, reviewing these and other discovery infractions, refused to grant the plaintiffs a default judgment. He determined that such a penalty was too harsh under the circumstances before him.
She did so. Among other things, she complained in her supplemental motions of the Government's failure to produce the Form 1769 and Mr. Svede's accident log. With respect to the latter, Ms. Robbins specifically pointed out that "Al Svede testified in his deposition (at page 114, line 16) that he keeps a log which, among other things, would contain information relating to types of claims
Mr. Means responded to a large number, but not all, of Ms. Robbins' allegations.
Due to the numerous discrepancies between the plaintiffs' claims and the defendant's response, the court directed the Government to bring its witnesses, including Mr. Svede, to the court later on the same day. One of the first questions the court asked Mr. Svede concerned the existence of the Form 1769. Mr. Svede testified under oath that not only did the Form 1769 exist, but that he possessed a copy of that form.
The court disagreed, finding that several of the requests covered the accident log. The court further found that although the Government and the people working on the case knew that the log existed and that it was called for by the requests for production, the Government chose to withhold the documents in derogation of the discovery rules and the court's order compelling discovery. Finally, the court found that the Government had severely disadvantaged the plaintiffs by producing the documents on the eve of trial and by causing the plaintiffs' counsel to devote a great amount of time, not to preparing for trial, but to dealing with the Government's discovery abuses.
Exercising authority under Rules 37(b) and 37(d) of the Rules of Civil Procedure, the court determined that stiff sanctions were appropriate because of the Government's flagrant disregard of its discovery obligations and its flouting the court's order compelling discovery. Although the court believed that a default judgment as to liability or damages was justified, it decided instead merely to deem that the prima facie elements of the plaintiffs' liability claim were established for the purposes of the case. The court allowed the Government to present evidence of its affirmative defenses and required the plaintiffs to prove damages. After a bench trial on the Government's affirmative defenses and on damages, the court found for the plaintiffs and awarded them $892,567.00.
Not prone to overlook what appeared to be a "flagrant case of misrepresentation by Mr. Means, as well as a rather flagrant violation of the discovery obligations," the district court held a hearing to determine whether it should hold Mr. Means in criminal contempt of court and bar him from practicing before the Northern District of Texas. Tr. Vol. 3 at 4. During the hearing, the court ignored many of the discovery infractions and focussed solely on Mr. Svede's log. Despite the fact that he had previously referred to the accident log several times, both in his response to Ms. Wortham's supplemental motion for sanctions
The district court thought otherwise, concluding that he could find that the elements of criminal contempt were proved beyond a reasonable doubt. The court determined that Mr. Means had intentionally misrepresented to the court that Mr. Svede's log did not report Ms. Wortham's accident. However, giving Mr. Means the "benefit of the doubt," the court chose not to disbar him or hold him in criminal contempt. Instead, the court ordered Mr. Means to obtain fifteen hours of ethics or professional responsibility training by November 1, 1992. He also dictated that Means not be reimbursed for the training costs and ordered Mr. Means to reimburse Ms. Robbins for the time she had spent in the hearing. The Court again directed that Mr. Means not seek or obtain reimbursement for that sanction.
The Government and Mr. Means are not satisfied in the least bit with the outcome of this case, and they both appeal. The Government argues that the district court abused its discretion in deeming the liability elements of the case established. Mr. Means challenges the court's decision forbidding him from seeking reimbursement from the Government.
A. Standard of Review
Rule 37(b)(2) authorizes courts to appropriately respond to and deal with parties
B. Establishing Facts Against the Government
1. Proper Standard
The Government, in its argument that the district court improperly sanctioned it, insists that the sanction in question was tantamount to a default judgment on both liability and damage claims. The Government therefore contends that Rule 37 dismissal and default judgment cases control the facts of this case. See e.g. Batson v. Neal Spelce Associates, Inc. 765 F.2d 511 (5th Cir.1985); Marshall v. Segona, 621 F.2d 763 (5th Cir. 1980); Emerick v. Fenick Industries, Inc., 539 F.2d 1379 (5th Cir.1976). While it is true that a court's decision to deem certain facts established may equate to a default judgment in some circumstances, see Marshall, 621 F.2d at 766 n. 3, such is not the case here.
The district court allowed the Government to present its case in chief on its affirmative defense issue. The Government did so: it called three witnesses to attempt to prove that Brenda Wortham's negligence, not that of the Government, had caused the accident. Because the court's ruling did not preclude the Government from presenting its case in chief, the sanction was a far cry from a default judgment.
Thus, we believe that the default-judgment/dismissal cases proffered by the Government impose too great a standard for the type of sanction involved here. Rather than look to those types of cases, we believe that the Supreme Court's decision in Insurance Corp. of Ireland, Ltd. v. Compagnie Des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), governs this case.
There, the Compagnie Des Bauxites de Guinee ("CBG") filed suit in a Pennsylvania district court against its insurance companies. Several of the companies ("excess insurers"), including the Insurance Corporation of Ireland, filed motions for summary judgment based upon their contention that the Pennsylvania court lacked personal jurisdiction over them. CBG sought discovery on the personal jurisdiction issue; however, the excess insurers, though ordered and later threatened with sanctions, failed to make a conscientious effort to comply with the discovery orders. The district court therefore carried through on its threatened sanctions and determined that the excess insurers were subject to the in personam jurisdiction of the court for the purposes of the litigation. Insurance Corp. of Ireland, 456 U.S. at 697, 102 S.Ct. at 2101.
The Supreme Court, affirming the ruling of the district court, determined that decisions to impose sanctions under Rule 37(b) must be guided by two important considerations: The sanction must first of all be just, and it must "specifically relate to the particular `claim' which was at issue in the order
Because the discovery in issue targeted personal-jurisdiction evidence, the Court had no problem in finding that the deemed finding — personal jurisdiction — was sufficiently related to the claim sought to be proved by discovery. Id. at 708-709, 102 S.Ct. at 2107. The Court therefore found that the district court did not abuse its discretion in sanctioning the excess insurers. Id.
We believe that the two standards presented in Insurance Corp. of Ireland — fairness and substantial relationship between the sanction and the claim — along with a third — that the sanction meet the Rule 37 goals of punishing the party which has obstructed discovery and deterring others who would otherwise be inclined to pursue similar behavior, National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781 — should guide our review of the district court's decision in the case sub judice.
2. Just and Fair?
a. Ample Warning
This case resembles Insurance Corp. of Ireland in several key respects. First, as occurred in that case, the district court here warned the parties many times that it would not tolerate discovery abuses. See Bluitt v. ARCO Chemical Co., 777 F.2d 188, 191 (5th Cir.1985) (affirming the dismissal of a case where the district court found that the plaintiff's failure to obey discovery orders and heed warnings that dismissal would occur unless the plaintiff performed its discovery obligations showed that a sanction lesser than dismissal would have been of no avail).
In the instant case, the parties were warned in each of three scheduling orders, as well as in each of the memoranda which accompanied those orders, that discovery violations could result in dismissal or default judgment. Further, in the first hearing on Ms. Wortham's motion to compel, the district court, declining to grant a default judgment, specifically explicated that default judgment on liability and perhaps on damages might be justified if the Government continued in the type of conduct in which it was engaging.
Having been warned numerous times that discovery abuses in general and that the continuation of its conduct in particular might result in a default judgment, the Government should not have been surprised by the district court's decision to deem the liability facts established. In fact, based upon the Government's flagrant violations of its discovery obligations, its flouting the district court's discovery order, and its blatant misrepresentation to the court, the Government should have been relieved that the court did not order a much stiffer penalty.
b. Empty Promises
This case is also similar to Insurance Corp. of Ireland in that the Government here, like the excess insurers there, repeatedly promised to comply with its discovery obligations. Ms. Robbins, the plaintis' counsel, testified that she communicated with Mr. Means numerous times, both face to face and by telephone, before and after the Government's answers were due, explaining to him that time was of the essence and reminding him of the discovery cut-off date. Even
Without a doubt, those promises strung Ms. Robbins along, causing her to incorrectly believe that seeking an order compelling discovery or moving for Rule 37 sanctions was unnecessary. Ms. Robbins believed the Government's promises until it was nearly too late for her to adequately prepare her case. Had the Government simply refused to perform its discovery obligations without giving vain assurances of its alleged intent to comply, Ms. Robbins would almost certainly have sought an order to compel much earlier than she did. We view the Government's unfulfilled promises as the Supreme Court viewed the excess insurers' pledges to comply with CBG's discovery requests: They support the district court's decision to impose sanctions.
c. Frivolity of the Claim
The Government has never contended that the plaintiffs' use of discovery was an abuse of judicial process. The plaintiffs had a colorable claim that the Government's negligence caused Ms. Wortham's accident. The Government conceded that only five of eight light fixtures were functioning on the day of the accident. More importantly, the concealed log proved that numerous other customers had likewise fallen at the River Bend Post Office.
d. Other Considerations
1. Intentional Misconduct
The Government asserts that there is no evidence of willful or contumacious behavior in this case. It therefore claims that the district court's sanction was unjust.
Regardless of the proper mens rea standard however,
2. It's Not Our Fault
The Government further claims that it was an innocent client and that the district court unfairly punished it for the errors of its attorney, Mr. Means. This Court has often emphasized that an innocent party should not be severely penalized for the misconduct of its counsel. Batson, 765 F.2d at 514; Marshall, 621 F.2d at 768; Factory Air Conditioning Corp. v. Westside Toyota, Inc., 579 F.2d 334, 337 (5th Cir.1978). However, the district court did not punish the Government for misconduct solely attributable to the Government's attorney. The court concluded that there was "no question but [t]hat [the accident log] was called for by the requests for production and was obviously known to people that were working on the case on behalf of defendant." Tr. Vol. 5 at 148. The key people who worked on the case were Mr. Means, the Government's attorney, and Mr. Svede, the Government's representative.
There is ample evidence in the record to support the district court's conclusion that Mr. Svede also engaged in misconduct. During Mr. Svede's deposition, Ms. Robbins referred him to each request for production and asked him what documents were responsive thereto. Mr. Svede responded that he possessed an accident log which was called for by at least one of the requests. Mr. Means testified that after the deposition, he went over the production requests with Mr. Svede numerous times to obtain his assistance in responding to the requests.
Mr. Svede's testimony, when considered alone, is incredible. Moreover, his testimony is contrary to Mr. Means' earlier testimony. As noted in section I of this opinion, Means stated as an officer of the court that he had reviewed Mr. Svede's log and had determined that it was not responsive to the plaintiffs' requests for production.
We cannot accept the Government's ludicrous assertion that Mr. Svede was totally removed from the misconduct here. The district court's finding is amply supported by the evidence. We fail to see the injustice in sanctioning the Government for the misconduct of its representative in this case.
3. Previous Sanctions
Highly supportive of the district court's decision to deem that the liability facts were established in this case is the fact that that court had previously sanctioned Mr. Means for discovery abuses. One would think that a $2500 sanction granted personally against the Government's attorney would have been warning enough that the district court would not tolerate any further discovery abuses. Since such was not the case, the
Nevertheless, the Government complains that the district court should not have jumped to the sanction it chose, but should have granted a less harsh sanction instead. In the Government's view, only after disobeying the order compelling discovery after the imposition of a second, less-harsh sanction should it have been punished as severely as it was punished. This argument is without merit.
Attorneys are professionals. They are, in every respect, officers of the court, and officers of the court must comply with each court order when it is issued — not after two or three warnings to do so and not after lesser sanctions are imposed. "It [should be] universally understood that a court's orders are not to be willfully ignored, and, certainly, attorneys are presumed to know that refusal to comply will subject them and their clients to sanctions." Batson, 765 F.2d at 515.
We conclude that the sanction granted against the Government was fair.
3. Related to the Claim Sought to be Proved by Discovery
The district court determined that the only reason the Government withheld the accident log was to prevent the plaintiffs from learning that a number of other customers had also fallen in the River Bend Post Office. Had the Government properly responded to the subpoenas duces tecum and requests for production, the plaintiffs would have been able to investigate those accidents and would likely have strengthened their liability allegations against the Government. Obviously, the Government's misconduct precluded that from happening.
When parties present no valid objections to discovery and intentionally withhold properly requested information, courts have the authority to presume that the party's refusal to produce the information is "an admission of the want of merit in the asserted defense."
4. Punishment and Deterrence
The Government argues that for such a relatively minor infraction, the district court should have granted a continuance rather than imposing the type of sanctions at issue in this case.
For the above stated reasons we affirm the district court's decision to deem the liability facts as established for the purposes of this case.
C. Propriety of Sanctioning Mr. Means
Although Mr. Means does not argue that the district court abused its discretion in sanctioning him, he does contend that by forbidding him from seeking reimbursement from the U.S. Government, the district court violated the separation of powers doctrine. Mr. Means asserts that as a member of the executive branch, and, more specifically, the Justice Department, the Attorney General — and not a member of the judiciary— is to discipline him.
Congress has made it abundantly clear that it intends for Government attorneys to be treated the same as private attorneys. Amending 28 U.S.C. section 2412 in the Equal Access to Justice Act ("EAJA"), Congress determined that the Government should be held liable for attorney's fees and expenses "to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." 28 U.S.C. § 2412(b). The House Committee on the Judiciary explained that the change in section 2412, which took effect in October 1981, simply "reflects the belief that, at a minimum, the United States should be held to the same standards in litigating as private parties." HOUSE COMM. ON THE JUDICIARY, EQUAL ACCESS TO JUSTICE ACT, H.REP. No. 96-1418. 96th Cong., 2d Sess. 9 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4984, 4987, 4996. Moreover, the EAJA specifically deleted subsection (f) of Rule 37,
By taking away the Government's protection from Rule 37 sanctions, Congress could not have been clearer in revealing its intent to subject the Government and its attorneys to Rule 37(b)(2)(E) which provides that, except in circumstances not at issue in this case, district courts are to order the recalcitrant party, the attorney, or both to pay reasonable expenses, including attorney's fees, to the opposing party for violations of discovery orders.
There is no question but that a court can forbid a private attorney from seeking reimbursement from clients or employers under Rule 37. See Shipes, 987 F.2d at 323 ("Under Rule 37(b), [the attorney] may be personally liable for reasonable expenses, including attorneys' fees, caused by his failure to comply with a discovery order."); Derechin v. State University of New York, 963 F.2d 513 (2d Cir.1992) (upholding a district court's decision to forbid a state-employed attorney from seeking reimbursement from the state). In fact, the Supreme Court, construing Rule 11, determined that the punishment and deterrent effects of sanctions are maximized when awarded against the attorney personally:
Pavelic and LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126, 110 S.Ct. 456, 460, 107 L.Ed.2d 438 (1989) (emphasis in original).
We believe the reasoning in Pavelic and LeFlore holds true for Rule 37 sanctions. The district court's decision to prevent Mr. Means from seeking reimbursement was not inconsistent with the goals of Rule 37.
Contrary to Mr. Means' contention that the district court's decision violated the separation of powers doctrine, we believe that to restrict a district court's power to fashion appropriate sanctions, simply because the transgressor is a member of the executive or legislative branch,
The decision of the district court is AFFIRMED, and we tax all costs and attorney's fees for this appeal against the Government.
EDITH H. JONES, Circuit Judge, concurring specially:
I concur with all of Judge Johnson's fine opinion except for the following bit of dicta:
This is as unfortunate an overstatement as the government's contrary proposition that Judge McBryde's order preventing Means from seeking reimbursement from the Justice Department somehow violates the separation of executive and judicial powers. This court recently described the scope of a court's sanction against the backdrop of the constitutional separation of powers and concluded that sanctions fall within the court's inherent powers "necessary to the exercise of all others." In re Stone, 986 F.2d 898, 902 (5th Cir.1993), citing Roadway Express v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980).
On the same page, Stone says that
Stone disposes of this case. That the government says there is a violation of the separation of powers doctrine does not ipso facto make it so. The government's concern is too speculative upon the facts before us. First, contrary to the Justice Department's argument, it is not at all clear that its regulation bears on, much less purports to limit the court's independent power to determine how it will sanction a government employee. Second, the Justice Department offered no evidence or argument that Means would qualify for reimbursement but for the district court's order. Further, the government does not assert that the district court's order actually impinged upon the policy and personnel interests that it asserts are protected by immunity from such an order. These facts counsel against our rushing to opine upon an important constitutional issue. If the regulation affected the court's sanction power to the limited extent of preventing the court from issuing a sanction against an assistant United States attorney individually and non-reimbursably, it appears to me that such a regulation would not render this court's inherent sanction power "inoperative". A court has numerous other types of sanction remedies available against the federal government and its attorneys even if this one is not. To decide this point precisely is, however, unnecessary. The government's argument fails on the facts before us.
R. at 181. As to the requests which called for Mr. Svede's accident log, Mr. Means stated in his response that Mr. Svede had been his contact person.
R. at 346. (Emphasis added).
Tr. Vol. 5 at 48-50 (emphasis added).
We note, however, that Rule 37(b) clearly indicates that district courts have authority to grant a broad spectrum of sanctions. Of course, the flagrancy of a party's behavior must be directly proportionate to the severity of the sanction imposed. Nonetheless, neither this Court nor the Supreme Court has ever determined that the lack of willful, contumacious, or prolonged misconduct prohibits all sanctions. On the contrary, we have held that dismissal or default judgment is warranted only when misconduct is quite serious.
The Supreme Court made clear in Rogers, a case in which the petitioners were absolutely precluded by foreign law from turning over certain documents to the respondents, that though the petitioners were unable to comply with the discovery requests, the district court still had broad discretion to mete out a lesser sanction than dismissal. Rogers, 357 U.S. at 213, 78 S.Ct. at 1096 (stating that "[i]t may be that in the absence of complete disclosure by petitioner, the District Court would be justified in drawing inferences unfavorable to petitioner as to particular events").
Significantly, the Court explained that the type of conduct displayed by a party had no bearing on whether sanctions should be imposed, but only on the type of sanctions imposed. The Supreme Court explained, "[T]he willfulness or good faith of [a party], can hardly affect the fact of noncompliance and [is] relevant only to the path which the District Court might follow in dealing with [the party's] failure to comply." Id. at 208, 78 S.Ct. at 1094 (emphasis added). Hence, we simply note that willfulness is not required for deeming that certain facts are established for the purposes of a case unless that sanction is the equivalent of a dismissal or default judgment.
Hammond Packing Co. v. Arkansas, 212 U.S. 322, 352, 29 S.Ct. 370, 380-81, 53 L.Ed. 530 (1909).
This language is inapplicable in the situation before us: The regulation evinces no intent whatever to restrict a court's authority to impose sanctions against government employees. Even if an inconsistency existed, however, the Federal Regulations, which do not have the force of a federal statute, would have to bow to the Federal Rules of Civil Procedure, which do. See Sibbach v. Wilson and Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941).
While it is certainly true that the district court in the case sub judice commented that taxpayers should not be penalized for the misconduct of Mr. Means, the record in this case shows all too clearly that, unlike the district court in Blue, this district court's primary reason in precluding Mr. Means — who was at all times involved in this litigation — from seeking reimbursement was to punish Mr. Means for his flagrant disregard of his discovery obligations. Such a reason for imposing sanctions is entirely appropriate. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781; See Derechin v. State University of New York, 963 F.2d 513 (2d Cir.1992) (upholding district court's decision to prohibit state attorney from seeking reimbursement).
Id. (emphasis added); see also United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32, 33, 3 L.Ed. 259 (1812) (asserting that "[t]o fine for contempt — imprison for contumacy — inforce the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others ...").