United States District Court, W.D. Oklahoma
Charles B. Goodwin United States District Judge.
before the Court is Plaintiff United States of
America’s Motion for Sanctions (Doc. No. 20), which
seeks sanctions under Federal Rule of Civil Procedure
26(g)(3) against S. Rachel Pappy, an attorney for Defendant
Harimau Oil and Gas Consulting, LLC (“Harimau”).
Also at issue is the question of payment of expenses
associated with Plaintiff’s Motion to Compel (Doc. No.
20), which was granted in relevant part after argument and a
hearing. See Order of Aug. 9, 2019 (Doc. No. 31). In
addition to the hearing, the Court has considered briefing
and documents that were submitted by both parties on the
record and by Ms. Pappy ex parte.
December 2018, Plaintiff served its First Request for
Production of Documents upon Defendant. See Doc. No.
21-1. This discovery request sought, among other items:
“Documents reflecting any communications between
[Defendant] and Richard Eutsler regarding his unpaid federal
tax liabilities, the Notices of Levy, IRS Correspondence, or
communications with the IRS.” Id. Req. No. 3;
see also Id . Reqs. No. 4, 5, 7, 13.
“Document” was defined to include e-mails and
other “electronically stored information”
“in any medium from which information can be obtained
either directly or, if necessary, after translation by the
responding party into a reasonably usable form.”
Id. at 2; see Fed. R. Civ. P. 34(a)(1)(A).
Defendant served its responses on February 7, 2019, and
affirmatively stated: “No such documents exist.”
Doc. No. 21-2, Resp. No. 3. These responses were signed by
Ms. Pappy. See Id . at 6; Fed.R.Civ.P. 26(g)(1).
did not produce any e-mails at that time. In May 2019 and
thereafter, after Plaintiff learned of the existence of
responsive emails and demanded that Defendant search for,
identify, and produce responsive e-mails to Plaintiff,
Defendant produced multiple responsive e-mails.
granting Plaintiff’s Motion to Compel, the Court
ordered Defendant to submit supplemental responses and
production, as well as specific affidavits, no later than
August 23, 2019. See Order of Aug. 9, 2019, at 3.
to Federal Rule of Civil Procedure 26(g)(1)(B), “an
attorney’s signature on a discovery response
constitutes a certification ‘that to the best of [his
or her] knowledge, information and belief formed after a
reasonable inquiry, ’ the response is consistent with
the rules and warranted by existing law, is ‘not
interposed for any improper purpose, ’ and is
‘neither unreasonable nor unduly
burdensome.’” Acosta v. Maranto, No.
CIV-15-1378-D, 2017 WL 4237114, at *1 (W.D. Okla. Sept. 21,
2017) (quoting Fed.R.Civ.P. 26(g)(1)). Rule 26(g)(3)
prescribes that if an attorney’s certification violates
this rule “without substantial justification, ”
the court “must impose an appropriate sanction”
on the attorney, the party, or both. Fed.R.Civ.P. 26(g)(3).
“The sanction may include an order to pay the
reasonable expenses, including attorney’s fees, caused
by the violation.” Id.
37(a)(5) provides that if a party’s motion to compel is
granted, the court “must” “require the
party or deponent whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the
motion, including attorney’s fees.” Id.
R. 37(a)(1)(A). The court may not order such payment if
certain conditions are met, including that “other
circumstances make an award of expenses unjust.”
Rule 26(g)(3) Sanction
addition to hearing argument at the hearing of August 9,
2019, the Court has reviewed Plaintiff’s Motion for
Sanctions and supporting Declaration (Doc. No. 21),
Defendant’s Supplement (Doc. 36) with an affidavit from
Kendra Wesson (Doc. No. 36-1), and Plaintiff’s Reply to
Defendant’s Supplement (Doc. No. 37) with supporting
Declaration (Doc. No. 38). Also considered by the Court are
Ms. Pappy’s records of her correspondence with her
client Harimau, which were submitted ex parte. See
Doc. No. 30.
evident from the record before the Court is that Ms. Pappy
should have put as much thought and care into producing her
client’s discovery responses of February 7, 2019, as
she did into producing later responses in May through July
2019-after Plaintiff voiced its concerns over the
deficient e-mail production. The Court is unable to find,
however, that Ms. Pappy’s certification of February 7,
2019, reflects a lack of a “reasonable inquiry”
as to whether the responses are consistent with the Federal
Rules or otherwise proper under Federal Rule of Civil
Procedure 26(g). Fed.R.Civ.P. 26(g)(1)(B)(i); see Id
. R. 26(g)(1)(B)(ii), (iii). The relevant correspondence
with Harimau shows that from January 26, 2019, until the
responses were signed, both Ms. Pappy and Ms. Wesson (a
Harimau executive and Ms. Pappy’s primary client
contact) were in frequent contact regarding Plaintiff’s
discovery requests and the need for Harimau to transmit
responsive documents, including e-mails, to Ms. Pappy. Ms.
Wesson’s affidavit (which does not comply with 28
U.S.C. § 1746 but is nonetheless persuasive) likewise
indicates that Ms. Pappy did inquire about available records,
and about Harimau’s communications with Mr. Eutsler,
but that Ms. Wesson misunderstood the scope of
Plaintiff’s discovery requests. See Wesson
Aff. at 1-2.
the Court finds that Ms. Pappy conducted an inquiry
sufficient to support her certification that the February 7,
2019 discovery responses were “consistent with the
rules, warranted by law, and reasonable.”
Acosta, 2017 WL 4237114, at *2; see In re Byrd,
Inc., 927 F.2d 1135, 1137 (10th Cir. 1991) (explaining
that under Rule 26(g), “the court must judge the
attorney’s conduct under an ...