Opinion
Case No. 94-2202-JWL.
March 4, 2002.
MEMORANDUM AND ORDER
On November 2, 2001, Magistrate Judge O'Hara ruled on defendants' motion to strike the supplemental disclosures of two of plaintiff's experts, Dr. David Burns and Dr. Neil Grunberg. Judge O'Hara declined to strike the experts' supplemental disclosures but imposed monetary sanctions against plaintiff's counsel. Plaintiff's counsel seeks review of Judge O'Hara's order (Doc. 481). The court overrules plaintiff's objections to the order because it does not believe that the magistrate judge's decision was clearly erroneous or contrary to law.
• Standard
Federal Rule of Civil Procedure 72(a) provides that a party may object to a ruling by a magistrate judge on a non-dispositive matter. "The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." "A finding of fact is clearly erroneous if it is without factual support in the record or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made." Nieto v. Kapoor, 268 F.3d 1208, 1217 (10th Cir. 2001).
• Background
During an April 23, 2001, status conference, Judge O'Hara imposed a May 11, 2001, deadline for the parties to supplement discovery pursuant to Federal Rule of Civil Procedure 26(e). On May 7, 2001, plaintiff filed a motion for leave to update the expert reports seeking more time for his experts to review documents that the court had recently ruled not privileged. The court granted the motion in an order dated June 14, 2001. The order required that the plaintiff's supplement include "a listing of the specific additional documents the experts have reviewed" and a "`redlined' copy showing exactly how the review of those documents have changed the experts' opinions as expressed in their reports or any deposition testimony they may have given in this case." On July 2, 2001, plaintiff filed an unopposed motion to extend time for filing the supplemental disclosures and on July 10, 2001, Judge O'Hara granted the motion, giving plaintiff until August 31, 2001 to file the supplemental disclosures.
On August 31, 2001, plaintiff filed supplemental reports for Dr. David Burns and Dr. Neil Grunberg. The supplemental report of Dr. Grunberg indicated that he reviewed "documents contained in a two-volume set of looseleaf notebooks that were provided to me by [plaintiff's counsel]," concluded that the documents "are consistent with the information that I provided" in the initial expert report and quoted four documents in support of this conclusion. The supplemental report of Dr. Burns did not indicate which documents he reviewed. A "redlined" copy of the report, attached to a letter addressed to defense counsel dated September 27, 2001, shows that Dr. Burns expanded the scope of his report "based on documents that have become available since" his previous expert report. This redline copy of the report was not provided to defendants by the court's August 31 deadline.
In an order dated November 1, 2001, Judge O'Hara ruled on defendant's motion to strike the supplemental disclosures and held that striking the supplemental disclosures was not warranted but that "plaintiff's counsel's conduct — including their blatant disregard of the spirit of the court's June 14, 2001 order, and their woefully dilatory conduct in failing to abide by the court's scheduling order that imposed a May 11, 2001 deadline for supplementing discovery — warrants sanctions under Fed.R.Civ.P. 16(f) and Fed.R.Civ.P. 37(c)(1)."
• Analysis
Federal Rule of Civil Procedure 16(f) provides that "[i]f a party or party's attorney fails to obey a scheduling or pretrial order . . . the judge, upon motion or its own initiative, may make such orders with regard thereto are just, and among others any of the orders provided in Rule 37(b)(2)(A), (B) or (C)." The rule also provides that "[i]n lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified.
While plaintiff's counsel objects to Judge O'Hara's conclusion that plaintiff failed to timely file the supplemental disclosures, counsel does not challenge the fact that plaintiff did not timely comply with the requirements that the supplemental disclosures list the specific additional documents the experts reviewed and that counsel provide a "redlined" copy of the supplemental disclosures showing exactly how the review of the documents changed the experts' opinions. Sanctions under Rule 16(f), in the opinion of the court, were appropriate. According to the Tenth Circuit, Rule 16(f) is designed to allow courts to actively manage cases and applies to all pretrial orders:
While on the whole Rule 16 is concerned with the mechanics of pretrial scheduling and planning, its spirit, intent and purpose is clearly designed to be broadly remedial, allowing courts to actively manage the preparation of cases for trial. . . . [T]here can be no doubt that subsection (f), added as part of the 1983 amendments to Rule 16, indicates the intent to give courts very broad discretion to use sanctions where necessary to insure not only that lawyers and parties refrain from contumacious behavior, already punishable under the various other rules and statutes, but that they fulfill their high duty to insure the expeditious and sound management of the preparation of cases for trial. . . . The purpose of Rule 16 is to insure early judicial intervention in the process of trial preparation and proper conduct of that entire process. When viewed in its broad remedial context, subsection (e) contemplates its application to all pretrial management orders. Certainly the sanctions concept contained in subsection (f) is a codification of the purpose to insist that the court, the lawyers and the parties abandon habits which unreasonably delay and otherwise interfere with the expeditious management of trial preparation. There is no reason, either in specific language or logic, for applying sanctions differently to pretrial matters other than the formal conferences defined and expanded in the 1983 amendments to Rule 16.
Matter of Sanction of Baker, 744 F.2d 1438, 1440-41 (10th Cir. 1984) (en banc). Even if the supplemental reports were timely filed, plaintiff's counsel did not comply with the court's requirement that the reports indicate which documents the experts reviewed, which were relied upon by the experts and how the documents changed the experts' opinions. Instead, by a letter dated September 27, 2001, almost one month after the deadline set by the court, counsel disclosed which documents were reviewed by the experts and provided a "redline" copy of Dr. Burns' report. As Judge O'Hara pointed out, the purpose of granting plaintiff's counsel more time to file supplemental disclosures was to allow counsel to provide recently available documents to plaintiff's experts. While plaintiff did provide such documents, counsel also provided additional documents to the experts that had been available for years. Judge O'Hara accurately characterized this action as violating the spirit of the June 14 order. In the opinion of the court, sanctions were appropriate for the failure of plaintiff's counsel to comply with the court's June 14 order; Judge O'Hara's order granting sanctions was not clearly erroneous or contrary to law.
Plaintiff's counsel objects to the sanctions arguing that counsel did not receive an opportunity to be heard. Plaintiff had ample opportunity to make its case in response to defendants' motion to strike the supplemental reports. The opportunity to respond in writing satisfies the due process requirement of an opportunity to be heard prior to the imposition of sanctions. Resolution Trust Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir. 1995) ("An opportunity to be heard does not require an oral or evidentiary hearing on the issue; the opportunity to fully brief the issue is sufficient to satisfy due process requirements."). The fact that the court decided to impose a sanction different than the one advocated in the defendant's motion does not entitle counsel to another round of briefing. Counsel had the opportunity to justify its failure to comply with the court's order and to argue that the defendants were not prejudiced by the non-compliance. Consideration of these factors lead the magistrate judge to conclude that sanctions were appropriate, but not the drastic sanction of striking the supplemental reports.
Plaintiff's counsel also argues that Judge O'Hara "applied an erroneous legal standard when determining sanctions." In their brief, counsel does not argue that the wrong standard was applied, but argues that in considering whether a Rule 26(a) violation is justified or harmless, Judge O'Hara considered the bad faith of the wrong party. The court need not reach this issue because the test, while helpful, does not control the award of sanctions under Rule 16(f). Under Rule 16(f), a finding of bad faith is relevant to an award of fees and expenses only to the extent that "in the absence of a finding of bad faith, there must be a sufficient nexus between noncompliance with the rules and the amount of fees and expenses awarded as a sanction." Turnbull v. Wilcken, 893 F.2d 256, 259 (10th Cir. 1990) (per curiam) (remanding for a redetermination of fees and expenses where district court awarded "the entire amount of [the defendant's] fees and expenses without specifying how the amounts awarded were related to the violations of the rules."). Here, the nexus is sufficient because the court ordered that plaintiff's counsel pay for fees and expenses in seeking a remedy from the court for plaintiff's failure to comply with the court's order and in curing any possible prejudice caused by plaintiff's actions by allowing a second set of depositions of the experts limited in scope to the supplemental reports and the documents on which the supplements were based. While it was possible for the magistrate judge to cure any possible prejudice by means less costly than a second set of depositions, the court cannot say that it amounted to clear error for the court to chose depositions as the means of curing such prejudice and imposing the costs on plaintiff's counsel. Even absent a nexus, the award of sanctions should be sustained. While the magistrate judge expressly considered only the bad faith of the defendants, the court's findings regarding the conduct of plaintiff's counsel "attest to the willful noncompliance with [the June 14 order]," and, thus, even absent a nexus it is appropriate to sustain the entire award of fees and costs. Jordan F. Miller Corp. v. Mid-Continent Aircraft Service, Inc., 1999 WL 164955 at *2 (10th Cir. March 24, 1999).
IT IS THEREFORE ORDERED that plaintiff's objections to Judge O'Hara's order (Doc. 481) are overruled.
IT IS SO ORDERED.