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Rutt v. Pritzker

United States District Court, D. Arizona

February 17, 2017

Beverly T Rutt, Plaintiff,
Penny Pritzker, Defendant.


          Douglas L. Rayes United States District Judge

         Before the Court is Defendant's Motion for Summary Judgment and Plaintiff's Amended Motion for Sanctions. (Docs. 73, 92.) The motions are fully briefed and neither party requested oral argument. For the following reasons, Plaintiff's Amended Motion for Sanctions is denied and Defendant's Motion for Summary Judgment is granted.


         More than two months after the completion of briefing on Defendant's Motion for Summary Judgment, Plaintiff filed her Amended Motion for Sanctions, which relates to three requests for production that Plaintiff served on Defendants during the course of this litigation. Plaintiff contends that Defendant failed to properly respond to these requests and asks that the Court draw negative inferences regarding the contents of these documents as a sanction.

         Specifically and in relevant part, Plaintiff requested:

1. All the cover sheets (top page) of Enumerator Questionnaires (EQ), D-1(E), I, Plaintiff, personally worked on during my census work in 2010.
3. Names of Enumerators under the supervision of Crew Leader Hall from April 1, 2010 through May 4, 2010 who had their fingerprints taken more than once.
9. Please provide a transcript of the teleconference between administrative Judge Warmee, Kyle P. Symanowitz and Plaintiff on December 2, 2011; and including any correspondence, notes, memoranda, diaries, records, journals, written materials, web “blogs” or similar electronic filings, or records of any kind which were shared and/or complied that contain any reference to Plaintiff's employment with the U.S. Census.

(Doc. 95-1 at 6-7.)

         Defendant responded and lodged objections to each of these requests. As to Request Number 1, Defendant objected that the information was protected from disclosure under 13 U.S.C. §§ 8-9, 214, and was not relevant to any claims or defenses. (Id. at 9-10.) As to Request Number 3, Defendant objected on the basis of relevance, and that the request would require disclosure of personal information of non-parties and was prohibited by the Privacy Act, 5 U.S.C. § 552a(b). (Id. at 11.) Finally, in response to Request Number 9, Defendant objected on the basis of relevance, explained that it did not have the transcript in its custody or control, and that it had no other responsive documents. (Id. at 12-13.)

         The Court conducted a telephonic discovery dispute conference on June 21, 2016, during which it directed Defendant to supplement its responses to Request Number 1 and, for documents that do not exist, to explain why they do not exist, when they were disposed of, and who Plaintiff can depose to confirm the information. (Doc. 69.) Defendant thereafter served supplemental responses, which continued to assert the prior relevance and privacy objections, but also explained the whereabouts of the requested documents. (Doc. 95-1 at 16-18.) Specifically, for Request Number 1 Defendant explained that the documents were scanned into a computer system and their images were saved, but that the original documents were destroyed. Defendant also explained that the scanned images were transferred to the custody and control of the National Archives. Finally, Defendant identified Edmond Jarrell, Census Program Manager, as a person whom Plaintiff could depose about the whereabouts and handling of these documents.

         Plaintiff, however, did not depose Jarrell, nor did she contact the Court with complaints about Defendant's supplemental responses. Instead, she waited until months after the close of discovery and completion of dispositive motion briefing to file the present motion for sanctions.

         “There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who fails to obey an order to provide or permit discovery. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (internal quotations and citations omitted). Plaintiff has not demonstrated that sanctions are appropriate under either source of authority.

         Sanctions under Fed.R.Civ.P. Rule 37(b) are not appropriate because Defendant complied with the Court's order to supplement its responses to Plaintiff's document production requests. If Plaintiff believed those responses were deficient, the Court's scheduling order required her first to meet and confer with Defendant to resolve the issue. If the parties reached an impasse, Plaintiff ...

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