Case Summary
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Moore v. Napolitano, "Moore II", 2010 U.S. Dist. LEXIS 70892 (D.D.C. July 15, 2010).
A magistrate judge's preclusion sanction against a government agency for violation of a discovery order was modified to avoid an unintended litigation-ending sanction and to tailor "a proportional remedy to the alleged harm."
Present and former Secret Service agents filed an employment discrimination action against the Department of Homeland Security on their own behalf and on behalf of other agents. The magistrate judge found that the Department violated an order requiring a "reasonable search" of responsive documents that were in paper form, and she imposed a sanction that would preclude the Department from defending any prima facie case of discriminatory non-promotion that plaintiffs might establish. The Department objected to the sanction on grounds that the Department had complied with the magistrate's order and that the sanction imposed was too harsh.
The court concluded that the magistrate judge was not clearly erroneous in finding that the Department had violated the discovery order. However, sanctions under Fed. R. Civ. P. 37 had to "'be just,'" and the "'choice of sanction should be guided by the concept of proportionality.'" The magistrate judge intended to avoid a litigation-ending sanction and did not intend to deny the Department a right to trial on the merits. The court thus modified the sanction to preclude the Department "from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs." The court explained that in addition to requiring the named plaintiffs at least to establish a prima facie case, the sanction would not unjustly benefit unnamed class members: "It is the individual named plaintiffs whose time, energy and resources have been most frustrated by the defendant's discovery misconduct and most compromised in the effort to gather anecdotal evidence in support of their discriminatory nonpromotion allegations."
<< Click here to go backPresent and former Secret Service agents filed an employment discrimination action against the Department of Homeland Security on their own behalf and on behalf of other agents. The magistrate judge found that the Department violated an order requiring a "reasonable search" of responsive documents that were in paper form, and she imposed a sanction that would preclude the Department from defending any prima facie case of discriminatory non-promotion that plaintiffs might establish. The Department objected to the sanction on grounds that the Department had complied with the magistrate's order and that the sanction imposed was too harsh.
The court concluded that the magistrate judge was not clearly erroneous in finding that the Department had violated the discovery order. However, sanctions under Fed. R. Civ. P. 37 had to "'be just,'" and the "'choice of sanction should be guided by the concept of proportionality.'" The magistrate judge intended to avoid a litigation-ending sanction and did not intend to deny the Department a right to trial on the merits. The court thus modified the sanction to preclude the Department "from offering any legitimate, nondiscriminatory reason to rebut any prima facie case of disparate treatment discriminatory nonpromotion of the individual named plaintiffs." The court explained that in addition to requiring the named plaintiffs at least to establish a prima facie case, the sanction would not unjustly benefit unnamed class members: "It is the individual named plaintiffs whose time, energy and resources have been most frustrated by the defendant's discovery misconduct and most compromised in the effort to gather anecdotal evidence in support of their discriminatory nonpromotion allegations."
