United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. McCARTHY, UNITED STATES MAGISTRATE JUDGE.
Motion for Rule 37 Sanctions, [Dkt. 239], is before the court
for decision. Defendants seek sanctions for Plaintiffs'
failure to comply with the court's discovery order dated
November 14, 2018, which required Plaintiffs to supplement
their Rule 26 disclosures. [Dkt. 183]. Plaintiffs filed a
brief opposing the motion for sanctions, [Dkt. 241], and
Defendants filed two supplemental memoranda which outline
Plaintiffs' continued non-compliance with the court's
order and outline additional complaints about Plaintiffs'
conduct of discovery. [Dkt. 260, 265]. Plaintiffs have not
filed anything in response to the supplemental memoranda.
end of the hearing on Defendants' motion to compel, held
on November 14, 2018, the court ordered Plaintiffs to
supplement their Rule 26 disclosures. Plaintiffs were
instructed to specify the categories of damages that are
being sought and to produce the documents Defendants sought
relating to the subject properties. At the hearing the court
made it clear Plaintiffs were required to provide the
documents, state they had already been provided, or state the
documents did not exist. Counsel for Plaintiffs agreed that
30 days was a sufficient amount of time to comply with the
order. Plaintiffs wholly failed to comply with the order
within the 30 days allotted.
response to the instant motion, Plaintiffs professed
confusion over whether compliance with the order was
necessary given the parties' discussion about and
agreement to try “bell weather” cases. The court
notes that Plaintiffs did not seek clarification,
modification, or a stay of the court's order. In the
court's view, Plaintiffs and their counsel, simply
ignored their discovery obligations in the first place, and
then ignored the court's discovery order. Counsel for
Plaintiffs claim that any oversight or misunderstanding as to
non bell weather discovery obligations is “purely
counsel's shortcoming.” [Dkt. 241, p. 6]. The court
takes a dim view of the inattention to discovery obligations
demonstrated by Plaintiffs' attorneys in this matter.
Counsels' professed confusion about their responsibility
to comply with the November 14 order sounds a false note in
light of the failure to seek clarification, modification, or
stay of the order.
the passage of time and the failure of Plaintiffs to respond
to the supplemental memoranda, it is not clear to the court
whether Plaintiffs have fully complied with the court's
order. According to Defendants, as of May 5, 2019, Plaintiffs
had not served a single updated discovery response or Rule 26
initial disclosure. [Dkt. 260, p. 1]. In addition, Defendants
advised that additional new Plaintiffs who were added to the
case by the Fourth Amended Complaint have also ignored
discovery requests. Id. In their Second Supplemental
Memorandum in support of their Motion for Sanctions
Defendants report that on May 7, 2019, five months after the
court-ordered deadline and two weeks after the last of
Plaintiffs' experts were deposed, Plaintiffs submitted
their amended Rule 26 disclosures. [Dkt. 265, p. 3].
Defendants assert that supplying the amended disclosures at
such a late date is a flagrant violation of the discovery
rules and prejudicial to them. Defendants also assert that
the disclosures are deficient in that they do not offer a
calculation of their alleged damages.
failure to comply with the court's discovery order and
the failure to timely fulfill their Rule 26 disclosure
obligations thwarts the orderly resolution of this lawsuit.
It is no excuse that compliance with discovery obligations is
inconvenient for Plaintiffs or taxing on their attorneys.
Compliance with discovery requirements and court orders is a
condition of Plaintiffs' continued maintenance of their
action in this court. See Fed. R. Civ. p. 37.
extent there are any Plaintiffs remaining in the case who
have not served substantive and verified answers to
interrogatories seeking an itemization of the categories of
damages being sought, those Plaintiffs are hereby ordered to
provide verified answers to interrogatories supplying that
information. All Plaintiffs in the case are also required to
produce all documents pertaining to their property as
discussed at the November 14, 2018 hearing. Also as discussed
at the hearing, if no responsive documents exist, or if all
such documents have been produced, a verified statement to
that effect will satisfy Plaintiffs' obligations.
far as Defendants' motion can be read as asserting that
an itemization of the dollar amount of damages claimed by
each Plaintiff was required by the court's November 14
order, that assertion is inaccurate. At the hearing on the
Motion to Compel, Defendants' counsel clearly stated that
the information that was required was identification of what
categories of damages were being sought by each Plaintiff.
Defendants' counsel acknowledged that identification of a
specific damage number is a topic for expert testimony.
supplementation and verification required herein must be
produced to Defendants by October 15, 2019. Plaintiffs are
advised that, regardless of the possible inconvenience to
them or their counsel compliance with this order may cause,
the failure to timely comply with this order will result in a
recommendation that non-complying Plaintiffs be dismissed
from this action. Timely compliance with this order should
provide Defendants with the information they require, albeit
at a late stage in the litigation.
court has not addressed the additional discovery problems
discussed in Defendants' supplemental memoranda. If
Defendants desire to seek sanctions for these matters, a
separate motion for sanctions should be filed.
Motion for Sanctions, [Dkt. 239] is GRANTED in Part.