Opinion
Case No. 6:99-cv-102-Orl-3ABI(22)
April 12, 2001
ORDER
This cause came on for consideration on February 20, 2001 on the following motion:
MOTION: SEXTON'S MOTION TO COMPEL PAYMENT OF SANCTIONS (Doc No. 50)
FILED: January 2, 2001
THEREON it is ORDERED that the motion is GRANTED in part pursuant to this order, and is otherwise DENIED.I. DISCOVERY AND DISCOVERY SANCTIONS
The purpose of discovery is to obtain the disclosure of all relevant information so that disputed issues are resolved fairly and justly in the light of a full and accurate understanding of the facts. United States v. The Procter Gamble Co., 356 U.S. 677, 682 (1958); Hickman v. Taylor, 329 U.S. 495, 500-501 (1947). Discovery operates with minimal judicial supervision absent a dispute requiring judicial intervention. Discovery is accomplished voluntarily — that is, the parties disclose relevant information without the need for court orders compelling disclosure. In this manner, lawyers do their duty as officers of the court seeking the truth. Malautea v. Suzuki Motor Co., Ltd.,, 987 F.2d 1536, 1546 (11th Cir. 1993); Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521-23 (llthCir. 1986).
As officers of the Court, counsel cooperate, and the judicial system operates as intended. Neither the Court nor the litigants are put to unnecessary trouble and expense in pursuit of the truth. Disputes are resolved on their merits as promptly and economically as the circumstances of the case permit. Malautea, 987 F.2d at 1546; Pesaplastic, 799 F.2d at 1522-23. In accordance with their duty, attorneys advise their clients to make honest, complete, and non-evasive disclosures in discovery matters, and also advise their clients of the spectrum of sanctions they face for violating that duty. See Fed.R.Civ.P. 26(g).
Under Federal Rule of Civil Procedure 37(a)(3), the Court treats an evasive or incomplete disclosure, answer or response as a failure to disclose, answer, or respond. Under Rule 26(g), an attorney must make a reasonable investigation and effort to assure that the client has provided all information and documents available to it which are responsive to the discovery request. See Fed.R.Civ.P. 26(g). Moreover, pursuant to Rule 26(e), a party has a duty to supplement its prior disclosures under certain circumstances:
(e) Supplementation of Disclosures and Responses. A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:
(1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to information contained in the report and to information provided through a deposition of the expert, and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due.
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
The courts do not have time to micro-manage discovery in every case. Rather, as officers of the Court, the lawyers voluntarily make the required disclosures and supplementation. Malautea, 987 F.2d at 1546; Pesaplastic, CA. v. Cincinnati Milacron Co., 799 F.2d at 1522.
Every court has the inherent power to sanction attorneys and litigants if necessary to manage the court's affairs. In addition, a court has the authority to impose sanctions for discovery abuses under Rules 26(g) and 37 of the Federal Rules of Civil Procedure. This court may sanction parties for incomplete or evasive disclosure pursuant to Rule 26(g)(3), which states in relevant part:
(3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee.
The purpose of Rule 26(g) is to "curb discovery abuse by explicitly encouraging the imposition of sanctions." Fed.R.Civ.P. 26(g), Advisory Committee Notes. Rule 26(g) requires judges to impose sanctions where appropriate. Rule 26(g) explicitly permits a court to require one who violates the rule to pay the opponent's attorney's fees and costs. In addition, Rule 37(a)(4) and (e)(1) of the Federal Rules of Civil Procedure authorize sanctions, including payment of attorney's fees, for a party's failure to disclose or supplement disclosure without substantial justification. Fed.R.Civ.P. 37(a)(4), (e)(1).
II. APPLICATION AND ANALYSIS
Hank Henry is the Principal Operations Inspector of the Federal Aviation Administration's ["FAA's"] Flight Standards Division Office ["FSDO"]. An FSDO inspector investigates infractions of the Federal Aviation Regulations ["FARs"] by airmen and air carriers for the FAA, and brings enforcement actions against pilots when appropriate. On March 29, 1998, Henry was the sole FAA official responsible for investigating the aircraft collision involving Sexton. Also, Henry alone had a duty to the National Transport Safety Board ["NTSB"] to find the probable cause of the accident, and to recommend to the FAA any improvements that might be made in the aviation system to enhance safety.
The parties introduced the following evidence at the sanctions hearings on October 19, 2000, and February 20, 2001.
After conducting his investigation, Henry filled out FAA Form 8020-23, the investigative accident report. The FAA's Enforcement Division would use the Form 8020-23 accident report to assess Sexton's culpability for the collision, if any, and to determine whether to bring an enforcement action against Sexton. The probable cause of the accident, and whether or not Sexton was to blame, has been the central contested issue in this case.
Several months prior to Henry's deposition in this case, Sexton's counsel asked the FAA enforcement action attorney, Keith May, for a copy of Henry's Form 8020-23 accident report. May gave him a copy on October 15, 1998. See Plaintiff's Exhibit 4 ["PX4"] and related entry on Plaintiff's Exhibit List. The FAA attorney did not tell Sexton that this was but one of several versions of the FAA's Form 8020-23 accident report, that this version was missing its second page (reverse side), and that an earlier version of the report had been more critical of the FAA controllers' conduct. Indeed, the FAA attorney may not have known. Sexton's counsel had no reason to question the validity of this document or to formally request all versions of this document from the FAA.
Hank Henry's deposition took place on March 22, 2000. In that deposition, Henry claimed that the FAA controllers were not at fault, and that the controllers had not violated any air traffic control rules, regulations, or orders. See Docket No. 22 at 3-6. During Henry's deposition, Sexton's counsel first learned that the FAA had given him only part of Henry's Form 8020-23 accident report. FAA attorney Keith May had not given counsel the back side (page two) of Henry's accident report. At the March 22, 2000 deposition, Sexton's counsel urgently demanded the complete accident report, and also demanded that Henry's deposition be continued until the FAA provided the accident report in full. The United States's attorney, Catherine Maraist, agreed that "fairness dictated that Hank Henry's deposition be continued." Docket No. 17 at 6. Therefore, Maraist agreed to continue the deposition until after Sexton's counsel had received the full investigative accident report.
The United States Department of Justice Attorney, Catherine Maraist, attended the deposition on behalf of the United States.
On March 23, 2000, Sexton served a letter on the enforcement agency attorney Keith May, and copied Maraist. Sexton requested the complete "original accident report." See Docket No. 15, Ex. BB. In response, May faxed to Sexton on March 23 what purported to include the missing pages of the original accident report (including page two and the narrative). See PX7; Docket No. 15, Ex. CC. However, that copy also indicated potential changes (white outs), as well as different writing characteristics, which Sexton's counsel found suspicious.
On April 5, 2000, Sexton formally requested the "original" 8020-23 accident report from Maraist. Docket No. 41, Ex. D. However, Maraist refused to give him the accident report because his request was "untimely." Docket No. 41, Ex. E. Maraist also denied Sexton's request because she was under the impression that the FAA enforcement attorney, Keith May, had already had provided Sexton with a complete copy of the 8020-23 accident report. See Docket No. 36 at 4 n. 8.
It was not until May 10, 2000, that the FAA finally surrendered to Sexton's document examiner an early and less favorable version of Henry's Form 8020-23 accident report. See PX1 . The report contained the initial assessment of the Principal Operations Inspector of the FAA's Flight Standards Division Office ( i.e., Henry) that the FAA was at fault — "N101DT was instructed to `without delay' cross Runway 9R and not advised of traffic holding short on the same taxiway by ground controller." PX1. In the narrative section, Henry identified who was responsible for the collision. Henry found that Sexton's aircraft was " not advised of aircraft holding short of runway 9R (directly ahead) on taxiway Lima" and that Sexton's tail wheel aircraft "could not S turn due to the expedite instructions." PX1. Henry described the "without delay" instruction as an instruction for Sexton to "expedite." PX1.
Henry's initial assessment (in PX1) was much more favorable to Sexton than were Henry's later-created (but earlier-produced) revised and edited versions. See PX4; PX7; PX19. Contrary to Henry's position during his first deposition, Henry had indeed found fault on the part of the controller. See PX1; Docket No. 22 at 7-9. Either by choice or by accident, the FAA had given Sexton only the later-created versions that better supported the FAA's case.
Throughout the litigation, Henry denied knowing who altered his narrative, and whose signature appeared on the version produced on May 10.
Noting the multiple versions of the 8020-23 accident report existed, including a version containing exculpatory evidence, Sexton sought to further develop the circumstances surrounding both the alterations and the failure to produce the exculpatory version. See Docket No. 41 at 3. On June 13, 2000, Sexton filed a motion to reopen discovery in order to obtain all versions of the 8020-23 accident report. Docket No. 15. On June 19, 2000, Sexton formally requested access to "all existing photocopies" of 8020-23.
In its June 30, 2000 memorandum in opposition to Sexton's motion to reopen discovery, the United States conceded that changes had been made to the 8020-23 accident report. The United States stated that Sexton had received the complete 8020-23 accident report, and promised that Sexton would be provided with all discrepant copies. Noting that Sexton would receive all discrepant copies of the 8020-23 accident report by agreement and that Henry's second deposition had been continued pending the production of the full report, the Court denied Sexton's motion to reopen discovery on July 6, 2000.
At Henry's August 3, 2000 deposition, Henry recanted his prior March 22, 2000 testimony, and admitted that he had indeed found fault with the air traffic controllers. Docket No. 22 at 7-9. During Henry's August 3 deposition, Sexton discovered the existence of yet another version of Henry's accident report. PX17. It had been in FAA attorney Brooke Lewis' file since March, 1999. The accident report produced on August 3 [PX17] contained the original version of Henry's narrative finding fault with the air traffic controllers, with the words " not advised" (of aircraft holding short) in even heavier bold emphasis. PXl7. The accident report produced on August 3 [PX17; DX1] did not contain the signature and date (4/28/97) on the back side that did appear on the report produced May 10, 2000 [PX1].
The government's conduct caused Sexton to expend considerable effort to procure that which he should have been able to obtain with an informal telephone call to opposing counsel — the multiple versions of the FAA's Form 8020-23 accident report. Sexton's efforts began well before April 17, 2000 (discovery cutoff, by which time all discovery supplementation was due). His efforts continued through August 3, 2000 (when the FAA finally produced the last version). The United States not only neglected to supplement its prior incomplete production, but flatly refused to do so.
The Court rejects the government's position that the Form 8020-23 accident report was not discoverable and relevant to the central contested issue. Indeed, it contained the opinion of the Principal Operations inspector of the FAA's Flight Standards Division Office that the FAA was responsible for the collision — a centrally contested issue. The United States has claimed throughout this case that Sexton was negligent, and not the air traffic controllers. In response to the urgent demand of Sexton's counsel on March 22, 2000, the government was obliged to conduct a reasonable investigation, was obliged to search through the FAA attorney's file, and was obliged to provide Sexton with all versions of Form 8020-23, including the ones that contained the exculpatory evidence. The United States refused to do so until June 30, 2000.
The United States stonewalled Sexton's attempts to obtain highly relevant and discoverable information. Throughout the life of this discovery dispute, Sexton has claimed that the United States acted fraudulently and in bad faith by not providing it with all the discrepant copies of the 8020-23 accident report. See Docket Nos. 15, 22, 40. The United States argued that it had no duty to produce or supplement the 8020-23 accident report under the Federal Rules of Civil Procedure. First, the United States claimed that the 8020-23 accident report was not relevant to Sexton's civil action. Docket No. 29 at 6-8. Second, the United States claimed that Sexton's "formal" request for the 8020-23 report was untimely because discovery closed on April 17, 2000. Docket No. 29 at 4. Third, the United States claimed that an attorney from a different section of the FAA had given Sexton the FAA Form 8020-23, so that the United States had no duty to supplement in this case. See Docket No. 40 at 100-102. The United States' arguments are wholly without merit.
After Maraist agreed on June 30, 2000 to provide all discrepant copies to Sexton [ see Docket No. 17 at 9], a reasonable investigation for those documents should have revealed all versions of the 8020-23. However, the United States did not produce all such copies until August 3, 2000, when the FAA finally produced the version of Form 8020-23 that had been in attorney Lewis's file since March 1999.
Although the FAA had good reason to hope that Sexton never learned of the FAA investigator's abandoned conclusion supporting FAA liability, this Court finds no intentional evasion or bad faith on the part of the United States. The United States, however, did fail to make a reasonable investigation and effort to assure that the FAA had provided all complete and discrepant versions of the 8020-23 accident report available to it which were responsive to Sexton's requests. The United States provided no substantial justification for its failure to supplement the FAA's prior discovery, and indeed continues to deny an obligation to do so. The United States, and not Sexton, should bear the unnecessary expense that resulted.
On October 19, 2001, therefore, this Court granted Sexton's motion for sanctions against the United States [Docket No. 40 at 85-86] in the form of attorney's fees and costs for the United States' failure to produce discrepant versions of the investigative accident report. The parties were to agree on the expense incurred by Sexton's attorney in the procurement of the documents during the period of April 17, 2000 (the close of discovery) and August 3, 2000 (the date when all discrepant versions of the accident report were finally produced to Sexton). Docket No. 40 at 93.
On January 2, 2001, Sexton filed the present motion to compel payment of sanctions. Docket No. 50. Specifically, Sexton sought to recover $16,500 in fees and $6,959.97 in costs allegedly incurred in the procurement of the discrepant copies of the accident report. Docket No. 50 at 2. The United States opposed the fees and costs requested by Sexton, claiming that Sexton improperly sought reimbursement for fees incurred in the ordinary course of litigation and the costs associated with Sexton's expert document examiner. Docket No. 53.
On February 20, 2001, the Court held a hearing on Sexton's motion to compel payment of sanctions. Docket No. 60. The Court found that there was no need for Sexton to resort to an expert document examiner. The United States never disputed the allegations Sexton sought to prove through the expert document examiner. Accordingly, the Court excluded all fees and costs associated with Sexton's expert document examiner. The remaining challenges to the fees and costs requested by Sexton were resolved by the parties at the hearing. It is therefore
ORDERED that Sexton's Motion to Compel Payment of Sanctions is GRANTED in part pursuant to this order, and is otherwise DENIED. DONE and ORDERED