Eubanks v. Eubanks, No. 2:2017cv01217 - Document 128 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting in part and denying in part 117 MOTION for Sanctions and to Vacate Protective Order, as stated herein. Signed by Judge Susie Morgan on 8/4/2017.(cc: VAN MEERVELD)(clc)
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Eubanks v. Eubanks Doc. 128 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A IVAN EU BAN KS CIVIL ACTION VERSU S N O. 17-12 17 SASKIA O. EU BAN KS SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is Respondent Saskia O. Eubanks’ Motion for Sanctions an d to Vacate Protective Order. 1 Petitioner Ivan Eubanks filed an objection. 2 For the following reasons, Respondent’s m otion is GRAN TED IN PART and D EN IED IN PART. BACKGROU N D On February 10 , 20 17, Petitioner filed his Verified Com plaint for Return of Children to the Caym an Islands pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. 3 This m atter was tried before the Court, sitting without a jury, on May 11th and May 12th of 20 17. 4 On J uly 31, 20 17, the Court issued its Findings of Fact and Conclusions of Law denying Mr. Eubanks’ request for the return of the children. 5 On J uly 3, 20 17, Ms. Eubanks filed her Motion for Sanctions and to Vacate Protective Order. 6 Ms. Eubanks requests that the Court award sanctions against the Petitioner, and his counsel, for their abuse of the discovery process. 7 Ms. Eubanks also requests that the Court vacate the J oint Protective Order entered into on J une 6, 20 17. 8 1 R. Doc. 117. R. Doc. 121. 3 R. Doc. 1. 4 R. Docs. 96, 97. 5 R. Doc. 125. 6 R. Doc. 117. 7 Id. 8 Id. 2 1 Dockets.Justia.com LAW AN D AN ALYSIS I. Motion for Sanctions Ms. Eubanks requests that the Court award sanctions against the Petitioner, Mr. Eubanks, and his counsel, for their abuse of the discovery process. 9 As explained in the Court’s J uly 31, 20 17 Findings of Fact and Conclusions of Law, Mr. Eubanks clearly did not com ply with his discovery obligations. On February 24, 20 17, the Court entered an Order setting a trial date on Mr. Eubanks’ Petition and ordering the parties to com ply with certain pretrial deadlines, including propounding written discovery by March 3, 20 17 and providing responses to written discovery by March 10 , 20 17. 10 Ms. Eubanks, in com pliance with the Order, propounded Interrogatories and Requests for Production of Docum ents to Mr. Eubanks on March 3, 20 17. Ms. Eubanks requested that Mr. Eubanks produce any and all correspondence between him self any prospective em ployer from J anuary 1, 20 15 to present. 11 Ms. Eubanks’ Interrogatories and Requests for Production of Docum ents clearly were not lim ited only to applications subm itted during this tim e period but also requested any correspondence between Mr. Eubanks and a prospective em ployer. By the term s of the February 24, 20 17 Order, Mr. Eubanks was required to produce the correspondence requested by March 10 , 20 17. He was obligated to supplem ent or correct his responses through the date of the trial under Federal Rule of Civil Procedure 26(e). Mr. Eubanks’ responses to the requests for production and his responses to the interrogatories did not include the nam es of any individuals or entities he corresponded 9 Id. Rec. Doc. 15. 11 See R. Doc. 125 at 3. See also R. Doc. 117-3 (Ms. Eubanks’ Interrogatories and Requests for Production of Docum ents). 10 2 with regarding em ploym ent during 20 16 or 20 17. Nor did his response include copies of correspondence between him self and any prospective em ployer during 20 16 or 20 17. 12 On the first day of trial, May 11, 20 17, Mr. Eubanks testified on direct that he did not apply for any jobs during 20 16. On cross-exam ination, Mr. Eubanks adm itted that he applied for a position with the United States Departm ent of State in March 20 16. After the trial recessed for the day, in a conference in cham bers with all counsel, the Court ordered Mr. Eubanks to search his em ails and provide Ms. Eubanks and her counsel with com plete responses to her Interrogatories and Requests for Production of Docum ents the following m orning. The following m orning, the Court began the day by questioning counsel for Mr. Eubanks about the docum ents the Court had ordered him to produce. 13 Counsel for Mr. Eubanks first responded that all of the docum ents had already been produced an d then adm itted that he did have three additional docum ents. 14 At the end of the second day of trial, the Court still was not satisfied that Mr. Eubanks had produced all responsive docum ents. The Court ordered Mr. Eubanks to retain a third-party vendor to perform a com plete search of his em ails to identify any corresponden ce with potential em ployers during 20 16. 15 Only when the Court ordered that a third party perform the search were the vast m ajority of the docum ents requested by Ms. Eubanks finally produced. 16 As a result of these untim ely disclosures, Ms. Eubanks requests that the Court award sanctions against the Petitioner, Mr. Eubanks, and his counsel, pursuant to Federal Rule of Civil Procedure 37(c)(1)(A) because of their failure to provide docum ents an d 12 See R. Doc. 125 at 3 (citing R. Docs. 99-2 at 4-12, 117-3 at 2-41). Rec. Doc. 127 at 3-5. 14 Id. 15 Id. at 15-18 . 16 Court Exhibit 2. 13 3 inform ation as required by Rule 26(a) or (e). Mr. Eubanks argues the Federal Rules do not allow for the im position of sanctions in this situation because Ms. Eubanks did not file a m otion to com pel a m ore com plete response to her discovery requests. Rule 37(c)(1) of the Federal Rules of Civil Procedure provides: If a party fails to provide inform ation or iden tify a witness as required by Rule 26(a) or (e), the party is not allowed to use that inform ation or witness to supply evidence on a m otion, at a hearing, or at a trial, unless the failure was substantially justified or is harm less. In addition to or instead of this sanction, the court, on m otion and after giving an opportunity to be heard: (A) m ay order paym ent of the reasonable expenses, including attorney’s fees, caused by the failure; (B) m ay inform the jury of the party’s failure; and (C) m ay im pose other appropriate sanctions including any of the orders listed in Rule37(b)(2)(A)(i)-(vi). 17 It is clear from the face of the rule that “Rule 37(c)(1) is intended to prevent the practice of ‘sandbagging’ an opposing party with n ew eviden ce” by failing to produce docum ents the party wishes to use in his own case. 18 Rule 37(c)(1) does not apply to the situation now before the Court, as Mr. Eubanks clearly was not attem pting to use evidence of his continued search for em ploym ent in the United States during 20 16 as eviden ce in support of his com plaint. Instead, Mr. Eubanks was attem pting to keep this eviden ce from Ms. Eubanks and the Court altogether. Although Ms. Eubanks m ay not seek paym ent of her reasonable expen ses, including attorney’s fees, under Rule 37(c)(1), she m ay pursue sanctions pursuant to Rule 37(b)(2). Rule 37(b)(2)(A) provides: “If a party or a party’s officer, director, or m anaging agent – or a witness designated under Rule 30 (b)(6) or 31(a)(4) – fails to obey an order 17 F ED. R. CIV. P. 37(c)(1). N ew W orld Solutions, Inc. v. N am eMedia, Inc., 150 F. Supp. 3d 287, 30 4 (E.D.N.Y. 20 15) (citations om itted). 18 4 to provide or perm it discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending m ay issue further just orders.”19 Rule 37(b)(2)(C) provides: “Instead of or in addition to the orders above, the court m ust order the disobedient party, the attorney advising that party, or both to pay the reasonable expen ses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circum stances m ake an award of expenses unjust.”20 A sanction under Rule 37(b)(2) is not contingent on a party’s first filing a m otion to com pel. 21 Instead, the offending party m ay be ordered to pay reasonable expenses, including attorney’s fees, based on his unjustified behavior. “The definition of ‘order’ in Rule 37(b) has been read broadly.”22 “Sanctions m ay be im posed even for a violation of a court’s oral order, as long as a party has ‘unequivocal notice that a court has asked that certain docum ents be produced.’”23 The Court’s written Order of February 24, 20 17 24 and the Court’s oral order on May 11, 20 17 both qualify as orders under Rule 37(b)(2), as they provided unequivocal notice to Mr. Eubanks of the docum ents that were to be produced. Mr. Eubanks’ subsequent production of 1,80 0 em ails, after the search by the retained third-party vendor, dem onstrates that Mr. Eubanks did not com ply with the Court’s orders of February 24, 20 17 and May 11, 20 17 in a tim ely m anner. Mr. Eubanks has provided no justification for his failure to com ply with 19 Fed. R. Civ. P. 37(b)(2)(A). Id. at (b)(2)(C). 21 McCleod, Alexander, Pow el & Apffel v . Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990 ) (“First, an order is not always a prerequisite to the im position of sanctions. Courts have held that [R]ule 37(b) sanctions can be im posed even without an existing order to com pel.”) (alterations added). 22 Dreith v. N u Im age, Inc., 648 F.3d 779, 787 (9th Cir. 20 11) (quotin g Unigard Sec. Ins. Co. v. Lakew ood Eng’g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992)). See also, Hepinstall v. Blount, 3 F.3d 439, *2 n.6 (5th Cir. 1993) (“We have interpreted ‘court order’ un der Rule 37(b) broadly.” (Citing McLeod, Alexander, Pow el & Apffel, 894 F.2d at 1485)). 23 Id. (quotin g Unigard Sec. Ins. Co., 982 F.2d at 368 (citing Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974)). 24 Rec. Doc. 15. 20 5 the Court’s orders and the Court knows of no other circum stances that would m ake an award of expenses unjust. Accordingly, pursuant to Rule 37(b)(2), Mr. Eubanks is ordered to pay Ms. Eubanks’ reasonable expenses caused by his failure to com ply with the Court’s orders, including her attorney’s fees. This m atter is referred to the assigned m agistrate judge for a calculation of the am ount owed. 25 II. Motion to Vacate Protective Order Ms. Eubanks’ m otion also requests that the Court vacate the J oint Protective Order, entered on J une 6, 20 17, 26 covering correspondence relating to Mr. Eubanks’ application to the State Departm ent. 27 The Court finds that Ms. Eubanks’ m otion has m erit. Courts have recognized that the com m on law “establishes a presum ption of public access to judicial records.”28 “Although the com m on law right of access to judicial records is not absolute, ‘the district court’s discretion to seal the record of judicial proceedings is to be exercised charily.’”29 This right of public access to judicial records applies even in cases in which the inform ation m ay not be of particular interest to the public. 30 “Although countervailing interests m ay outweigh the right of public access, the party seeking to overcom e the presum ption of access bears the burden of showing that the interest in secrecy outweighs the presum ption.”31 25 Ms. Euban ks’ m otion for sanctions is den ied with respect to her request that Mr. Euban ks’ counsel also be sanctioned but the Court adm its this was a close case. The attorneys are rem inded of their obligation to certify discovery responses only after a reasonable inquiry that a disclosure is com plete and correct. See F ED. R. CIV. P. 26(g)(1). It does not appear that the attorneys com plied with this obligation when they relied solely on Mr. Eubanks’ searches of his em ail. 26 R. Doc. 10 6. 27 The J oint Protective Order applies only to correspondence and docum ents relating to Mr. Euban ks’ application subm itted to the United States State Departm ent. See Court Exhibit 3 and Docs. 111-3, 111-4, 111-5. 28 SEC v. Van W aey enberghe, 990 F.2d 845, 848 (5th Cir. 1993) (citin g Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 198 8)). 29 Id. (quotin g Federal Savings & Loan Ins. Corp. v. Blain, 8 0 8 F.2d 395, 399 (5th Cir. 1987)). 30 See, e.g., Marcias v. Aaron Rents, Inc., 28 8 F. App’x 913, 915 (5th Cir. 20 0 8 ). 31 Jaufre ex rel. Jaufre v . Tay lor, 351 F. Supp. 2d 514, 516 (E.D. La. 20 0 5) (citin g Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 165 (3d Cir. 1993)). 6 Ms. Eubanks consented to the entry of the protective order to expedite production of docum ents related to Mr. Eubanks’ application with the State Departm ent. The trial was ongoing, Mr. Eubanks represented that the State Departm ent required that the docum ents be kept confidential, Ms. Eubanks needed the docum ents right away, and the entry of the protective order was the quickest way to obtain the docum ents. In reality, confidentiality through the entry of a protective order was n ot required by the Departm ent of State. Mr. Eubanks has provided no other justification to overcom e the presum ption that the records should be m ade accessible to the public. The Court finds that, with respect to Mr. Eubanks’ job application to the State Departm ent, there is no justification for a protective order. 32 Accordingly, the Court’s order entering the J oint Protective Order is vacated and the J oint Protective Order is withdrawn. 33 CON CLU SION For the foregoing reasons; IT IS ORD ERED that Ms. Eubanks’ Motion for Sanctions and to Vacate Protective Order 34 is GRAN TED IN PART and D EN IED IN PART. IT IS FU RTH ER ORD ERED that Ms. Eubanks’ Motion for Sanctions is GRAN TED to the extent she seeks to im pose sanctions on Mr. Eubanks for his failure to obey the Court’s orders. The Court REFERS the determ ination of the am ount of dam age caused by Mr. Eubanks’ failure to the m agistrate judge. 32 Court Ex.2 (R. Docs. 111-3, 111-4, 111-5). Mr. Euban ks m ay choose to seek a protective in the state court proceedings, if he believes such an order is necessary. 33 R. Doc. 10 6. 34 R. Doc. 117. 7 IT IS FU RTH ER ORD ERED that Ms. Eubanks’ Motion for Sanctions is D EN IED to the extent she seeks to im pose sanctions against Mr. Eubanks’ counsel for discovery violations. IT IS FU RTH ER ORD ERED that Ms. Eubanks’ Motion to Vacate Protective Order is GRAN TED . The Court’s Order entering the J oint Protective Order 35 is hereby VACATED and the Protective Order is hereby W ITH D RAW N . N e w Orle a n s , Lo u is ian a, th is 4 th d ay o f Au gu s t, 2 0 17. ______ _____________ ___________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 35 R. Doc. 10 6 8