IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
September 8, 1999
CITY OF VENTNOR CITY, EDWARD KOZMOR, ESQUIRE, MICHAEL R. MOSCA, ESQUIRE, JOHN SCOTT ABBOTT, ESQUIRE, TIMOTHY KREISCHER, JAMES G. AGNESINO, CHARLES VESPERTINO, WILLIAM W. RUTLEY, DAVID F. MULLANE, JAMES REEVES GOOS, ROCCO C. GEORGIO, DANIEL J. CAHILL, JOHN M. BAGNELL, WILLIAM H. THOMAS, JAMES R. CULBERTSON, GEORGE SANTAMARIA,
The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge
HONORABLE JOSEPH E. IRENAS
O P I N I O N
Plaintiff seeks an award of sanctions, in the form of attorneys' fees and costs, for an alleged discovery abuse by defendants City of Ventnor City, John Scott Abbott, Esquire, Timothy Kreischer, James G. Agnesino, Charles Vespertino, William W. Rutley, David F. Mullane, James Reeves Goos, Rocco C. Georgio, Daniel J. Cahill, and John M. Bagnell. *fn1 The Court held a hearing on this matter on August 6, 1999. For the reasons discussed below, plaintiff's motion is granted.
FACTS and PROCEDURAL HISTORY
Plaintiff Bruce Weinberg, a Philadelphia resident, owned a four- unit apartment building in Ventnor, New Jersey. Weinberg did not live on the property, but rented its apartments to others. According to the Complaint, beginning in 1994, various Ventnor officials began a pattern of charging Weinberg with criminal violations of Ventnor's trash codes. Weinberg disputed the charges in municipal court, and appealed three convictions to the New Jersey Superior Court. The Superior Court reversed the convictions, finding, inter alia, that a non-resident property owner could not be found guilty of trash violations committed by his tenants. Weinberg claims that despite this ruling, Ventnor officials subsequently continued to criminally charge him with trash violations. In addition, he claims that he was subjected to improper enforcement of the BOCA Property Maintenance Code. Weinberg further claims that he was arrested and brought into custody on October 17, 1997, on an unidentified charge for which he was apparently convicted in absentia.
Weinberg filed this lawsuit on November 12, 1997, against the City of Ventnor, its mayor, Timothy Kreisher, the Ventnor Building Code Supervisor Jimmie Agnesino, and other Ventnor officials who charged and prosecuted him with respect to the trash violations, along with the Ventnor housing inspectors and fire officials. Weinberg brought the action pursuant to 42 U.S.C. §1983, alleging that defendants violated his federal and state constitutional rights to due process of law. Weinberg also brought claims for conspiracy, neglect to prevent conspiracy, violations of the Racketeer Influenced and Corrupt Organizations Act of 1970, 18 U.S.C. §1961 et seq. ("RICO"), malicious prosecution, wrongful arrest and detention, and fraud.
The current dispute arose during discovery. *fn2 Plaintiff's counsel, Lynne M. Parker, Esq., seeking both housing code and trash violations that Ventnor issued to other Ventnor residents and property owners, served upon defendants the two document requests that are at issue here. On March 9, 1998, Ms. Parker forwarded plaintiff's Rule 26(a) disclosures to defendants, and included with them several document requests, one of which was the following:
All summonses issued by Ventnor alleging violations of the BOCA Property Maintenance Code from 1994 to the present, the notices of violations provided before the summons[es] were issued, documents reflecting how those notices were provided (i.e., personal service, certified mail, regular mail, etc.), the identity of the prosecutor, and the disposition of each case. (Pl. Ex. "2," Plaintiff's Rule 26 Disclosure Statement, at 4, ¶10).
By letter dated March 26, 1998, Ms. Parker made another request for:
All summonses issued by Ventnor from January 1, 1996 to the present alleging violations of Ventnor's trash ordinances, the identity of the prosecutor, Ventnor's file on each matter, and the disposition of each case. (Pl. Ex. "1," Parker 3/26/98 Letter, ¶5).
Defendants did not object to these requests. Instead, they simply did not respond. As a result, a telephone conference was held with the Court on or about August 3, 1998. During the telephone conference, defense counsel, A. Michael Barker, Esq., stated that all summonses, notices of violations, and related documents were kept in the individual files for each property in Ventnor. He represented that no summaries or compilations of the requested information existed. Thus, the only way to respond to those two document requests would be to go through each individual property file in Ventnor City Hall, of which there were over 5,500, sorted by address. Mr. Barker invited Ms. Parker to review the files herself and gave her full access to the files in the Building Code Enforcement Office in Ventnor City Hall.
In response to this representation, Mr. Parker went to Ventnor City Hall to inspect the individual property files. She traveled to Ventnor from her home an hour away and spent seven hours on eight separate days inspecting the files and taking notes as to which properties had summonses and notices for housing code and trash violations. After eight days, with less than half of the files reviewed, she realized that she had neither the time nor the resources to continue, and she gave up. She then spent an additional 7.7 hours compiling a handwritten log summarizing the information she had obtained during her eight-day search.
On March 29, 1999, Ms. Parker deposed defendant Timothy Kreischer, the Mayor of Ventnor. During that deposition, Mayor Kreischer testified that he received monthly summary reports from the Ventnor Housing Department that set forth all summonses issued by the Housing Department, including the recipient of the summons, the specific violation, the enforcement officer who issued the summons, and the disposition of each. (See Pl. Ex. "7," Dep. of Timothy Kreischer, March 29, 1999, at 24-25, 52-57). This was the first time that Ms. Parker had heard of monthly summary reports regarding the information she had requested in her document requests.
Ms. Parker then brought this motion for sanctions pursuant to Fed. R. Civ. P. 37, claiming that these monthly summary reports were responsive to her discovery requests, and had they been produced, it would have saved her the time and expenses incurred in traveling to Ventnor and searching through the individual property files at City Hall, along with her endeavor to compile a handwritten log of the same information that could be found in the monthly summary reports. She seeks attorney's fees and costs associated with her travel, file review, log preparation, and motion preparation and presentation -- a total of 85.7 hours at an hourly rate of $160.00.
Mr. Barker responded that he was not aware of the monthly summary reports until Mayor Kreischer testified about them. Nevertheless, he argues, he answered Ms. Parker's document requests properly, because the monthly summary reports are neither accurate nor reliable sources for the information Ms. Parker requested, and, therefore, are not responsive. He insists that the only proper way to respond to Ms. Parker's discovery requests is to go through the individual Ventnor property files.
Ms. Parker's allegations were the subject of a hearing that the Court held on August 6, 1999. At that hearing, defendants presented three witnesses, all of whom are defendants in this case, to discuss the origin and purpose of the monthly summary reports: Jimmie Agnesino, the Ventnor Construction Official in charge of the Housing Department, who reports directly to the Mayor; Timothy Kreischer, Ventnor City Mayor; and John Scott Abbott, the Ventnor City Solicitor.
According to defendants' testimony, the monthly summary report referenced by Mayor Kreischer in his deposition consisted of a computer printout of the Ventnor Municipal Court Calendar for all housing code violations. Although Ventnor does not have a separate court that exclusively hears housing code violations, the one day each month that housing matters are scheduled to be heard in the Municipal Court is referred to as "Housing Court."
The printout listed summonses that were issued by the housing department, and included categories for the: (1) name of the defendant; (2) source of complaint (officer or private citizen); (3) municipal agency; (4) ticket/complaint issuance date; (5) number code of the violation/offense; (6) complaint plea/status; and (7) persons involved (e.g., complainant, witness, etc.). The samples of the monthly summary reports that Ms. Parker attached to her motion also included handwritten notations next to the computer-generated information. Mr. Agnesino testified that these handwritten notations were most likely made by an individual in the Housing Department and/or any one of several housing inspectors who would observe the Housing Court proceedings each month. Handwritten on the printouts were the defendant's address, the disposition of the case (e.g., dismissed, relisted, monetary fine, etc.), and an explanation of the type of violation (e.g., "Tsh," meaning trash).
Despite this very specific information, Mr. Agnesino stated that the reports are neither accurate nor comprehensive. Some violations, Mr. Agnesino said, may be calendared for regular Municipal Court days, postponed, or transferred to another municipality for reasons of convenience, conflict, or court schedules, and these violations would not be reflected on the monthly summary reports. *fn3 Moreover, because the handwritten notations were not part of a formal data input procedure, they may not be dependable or complete. For these reasons, according to Messrs. Agnesino and Abbot and Mayor Kreischer, defendants do not consider these monthly reports to be reliable or accurate for any record-keeping purposes, and they are used solely for the "general information" of the Mayor, so he can get a broad overview of Housing Department activity. Mayor Kreischer requested and received these monthly reports since approximately 1992 through the present. Apparently, no one ever informed him that the monthly summary reports were inaccurate or incomplete.
Messrs. Agnesino and Abbott further pointed out that the monthly summary reports did not contain certain elements of Ms. Parker's request, and, for that additional reason, they did not believe the reports were responsive. For instance, the monthly summary reports do not contain a list of Notices of Violations, of which thousands are sent out each year to Ventnor residents. Moreover, Ms. Parker's request included "documents reflecting how those notices were provided (i.e., personal service, certified mail, regular mail, etc.)," and the reports do not contain that information. Furthermore, Ms. Parker requested "Ventnor's file on each matter" with respect to the trash violations, which could only be obtained by the physical inspection of the property files.
According to all three witnesses, because of the noted deficiencies in the monthly summary reports and the sweeping nature of Ms. Parker's requests, the only way to accurately respond to Ms. Parker's document requests was to go through each individual property file. They testified that they discussed Ms. Barker's document requests with defense counsel and decided that the only proper response was to direct Ms. Parker to the files at City Hall. They denied, however, discussing the monthly summary reports as an option.
1. Discovery Violations: Rules 26(a)(1) and 34
This dispute calls into play two separate discovery obligations of defendants: those under Rule 26(a)(1) and Rule 34. Rule 26(a)(1) requires each party, without awaiting a discovery request, to serve, among other things:
a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings Rule 26(a)(1) (emphasis added).
A party shall make its initial disclosures "based on the information then reasonably available to it," and that party has a "duty to supplement" its Rule 26(a)(1) disclosures as information becomes available or if it discovers that the information disclosed is incomplete. Fed. R. Civ. P. 26(a), 26(e) (emphasis added).
In addition to Rule 26(a)(1), Rule 34 permits a party to: serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained. . .) Fed. R. Civ. P. 34 (emphasis added).
The responding party "shall serve a written response within 30 days after the service of the request." Id. (emphasis added). "The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated." Id. "A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." Id.
Defense counsel argued at the hearing that defendants had no reason to know at the beginning of the case that housing code and trash violations issued to all Ventnor residents and property owners were relevant to plaintiff's claims and, therefore, defendants could not be expected to produce the monthly summary reports as part of their Rule 26(a)(1) disclosures. That being so, the relevance of this information became apparent when plaintiff's counsel requested, in conjunction with the service of plaintiff's Rule 26(a)(1) disclosures on March 9, 1998, all housing code violations issued by Ventnor and when she requested, less than one month later (on March 26, 1998), all trash violations issued by Ventnor.
It was then that defendants had a duty to supplement their Rule 26(a)(1) disclosures with any documents reflecting this information, including any "data compilations" in their possession, or to serve objections to the requests pursuant to Rule 34(b). Defendants did neither, even though it is clear that the monthly summary reports contained relevant information and that defendants Agnesino, Kreischer, and Abbott knew of their existence at the time their discovery production was being discussed.
Defendants' argument that the monthly reports are not responsive to plaintiff's request because they may be inaccurate or incomplete is groundless. So too is defendants' claim that because elements of Ms. Parker's requests went beyond the scope of the monthly reports -- such as notices of violations, documents reflecting how those notices were mailed, Ventnor's file on each matter, etc. -- the only proper response was to direct Ms. Parker to the individual property files in Ventnor City Hall. Defendants unquestionably had a duty to inform Ms. Parker of the existence of the monthly summary reports, and the directive for her to review over 5,500 individual property files was wholly improper in light of the availability of the reports. See Capacchione v. Charlotte-Mecklenburg Schools, 182 F.R.D. 486, 491 (W.D.N.C. 1998) (when producing documents in response to discovery request, party "must instruct [the requesting party] how to retrieve such information in the most efficient way possible" and "shall provide all directories, compilations, abstracts, indexes, or summaries that will aid in finding such information"); Myer v. Miriam Collins-Palm Beach Laboratories Co., 1985 WL 3275, *2 (E.D. Pa. 1985) ("If [defendant] has any compilations, abstracts or summaries relating to any information sought, they should be provided to the plaintiff. Moreover, defendant's burden is not satisfied merely by opening its doors to the plaintiff and pointing to an imposing wall of file cabinets or an insuperable mountain of documents. It must not only supply the relevant records in the most easily accessible form, but also guide and instruct the plaintiff as to how the relevant information may most efficiently be gleaned from the documents."); Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221, 226 (10th Cir. 1976) (if responsive information is readily available in a more manageable form, such as a summary or compilation, those documents, rather than the raw data on which they are based, should be turned over to the party seeking discovery).
Defendants could have, and should have, advised Ms. Parker that the reports may be inaccurate, and directed her to the files in Ventnor City Hall for the balance of the information. Even defendant Abbott conceded that the monthly summary reports "maybe would have assisted" Ms. Parker in her endeavor. If the information is relevant, responsive, and would have assisted counsel in obtaining complete information, it is discoverable, and may not be withheld on the grounds that it is allegedly inaccurate, incomplete, or that the request asked for more data than what the reports contained. It is not necessary for plaintiff's counsel to guess precisely the types of data that the monthly reports might have contained in order to make them responsive to her document requests.
Defendants' failure to comply with their duty to turn over these monthly summary reports caused Ms. Parker to spend significant time and resources conducting an unnecessary file review. Not only did defense counsel fail to inform Ms. Parker of the existence of the monthly summary reports, but he directly denied that any such summaries existed, both to Ms. Parker and to the Court. Their existence was discovered by Ms. Parker purely by accident -- an event that the federal discovery rules were expressly designed to prevent. Such a flagrant violation of defendants' federal discovery obligations justifies the imposition of sanctions.
(1) Sanctions: Rule 37
Rule 37 authorizes the imposition of sanctions for various discovery violations, ranging from violation of a Court Order to failure to comply with Rule 26(a) disclosure obligations. The court also may exercise its inherent power to sanction discovery abuses, although the Supreme Court has noted that a court should first look to rule-based sanction powers before turning to its inherent powers. Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); see also In re Tutu Wells Contamination Litig., 120 F.3d 368, 382-83 (3d Cir. 1997).
Rule 37(c) provides in pertinent part:
A party that without substantial justification fails to disclose information required by Rule 26(a). . . shall not, unless such failure is harmless, be permitted to use as evidence . . . any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by this failure, these sanctions may include any of the actions authorized under subparagraphs (A), (B), and (C) . . . Fed. R. Civ. P. 37(c). *fn4
The appropriate level of monetary sanctions for discovery abuses is dependent upon the costs associated with the conduct giving rise to the sanctions. In re: Tutu Wells Contamination Litig., 120 F.3d at 386. The sanctions must be carefully tailored to each case and must depend upon an evaluation of the nature of prejudice to the requesting party and the degree of fault of the non-producing party. Id.; Shamis v. Ambassador Factors Corp., 34 F. Supp.2d 879, 887 (S.D.N.Y. 1999); Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 504 (4th Cir. 1977).
The situation presented here is very similar to that in American Rockwool, Inc. v. Owens-Corning Fiberglass Corp., 109 F.R.D. 263 (E.D.N.C. 1985). In American Rockwool, in response to the plaintiff's discovery request for sales information by customer and product, Owens- Corning directed the plaintiff to an Ohio warehouse containing more than one million invoice documents, unsorted by customer or product. There were so many documents that plaintiff's counsel could not review them all for the information sought. When it was discovered that Owens- Corning had an alternative source of the information, conveniently sorted by customer, Owens-Corning immediately notified the plaintiff, but not before plaintiff's counsel had expended almost $3,000.00 and two days of document review in his futile trip to the Ohio warehouse.
The Court, finding that "[d]irecting the opposing party to an undifferentiated mass of records is not a suitable response to a legitimate request for discovery," *fn5 ordered Owens-Corning to pay the reasonable costs and expenses of plaintiff's counsel's trip to Ohio, along with attorney's fees and costs associated with filing plaintiff's discovery motion, even though the Court found that the failure to produce was merely negligent, and not intentional. Id. at 266-67.
Here, there is no question that the monthly summary reports should have been produced, both as part of defendants' continuing duty to supplement its Rule 26(a) disclosures and in response to plaintiff's Rule 34 document requests. Upon being repeatedly informed that the only way to obtain the requested information was to conduct an individual file review at Ventnor City Hall, plaintiff's counsel understandably undertook such an effort. With the scope of the search covering over 5,500 individual property files, the Court finds that Ms. Parker's eight-day, 72-hour aborted search was not unreasonable. There was no apparent alternative means by which to obtain the information, which defendants have not disputed was relevant and material to plaintiff's case. Had defendants disclosed the summary reports, most of Ms. Parker's efforts would have been unnecessary. She could have used the addresses that appeared on the monthly summary reports to immediately locate the corresponding file without having to look through files in which no violation notices would be found.
The Court finds, pursuant to Rule 37(c), that defendants failed to disclose information required to be disclosed under Rule 26(a), and that this failure was "without substantial justification." As discussed above, defendants' explanation for non-disclosure -- that they believed the monthly reports were inaccurate and incomplete -- has never been grounds upon which to conceal relevant and requested information. Moreover, defendants never produced the information or objected to its production, even when plaintiff's counsel specifically requested it, and they forced plaintiff's counsel to seek the Court's intervention in what should have been a routine document production.
The Court further finds, pursuant to Rule 37(c), that such failure to disclose the monthly summary reports was not "harmless." It necessitated a significant expense of time, money and resources undertaken by plaintiff's counsel, most of which would have been saved by timely production of the monthly summary reports.
For these reasons, the Court will grant Ms. Parker's request for her attorney's fees and costs incurred in conducting the file review, less the amount of time that Ms. Parker would have spent reviewing the files for supplemental information had she been in possession of the monthly summary reports. At the hearing, Ms. Parker estimated that it would have taken her approximately four hours to search the files for supplemental information, if she had had the monthly summary reports as a starting point. Accordingly, subtracting six hours from counsel's total file review time (which includes two hours travel time), plaintiff's counsel is entitled to reimbursement for 66 hours of her file review time.
Plaintiff's counsel also is entitled to reimbursement for: (1) the hours spent compiling a handwritten log of the same information that was contained in the monthly summary reports, for which she claims 7.7 hours; (2) researching and preparing her motion for sanctions, for which she claims 3 hours; and (3) presenting her motion at the hearing, for which she claims an additional 3 hours. The Court finds that 7.7 hours is a reasonable amount of time to compile the handwritten log. The Court further finds, however, that 6 hours is excessive for preparing the sanctions motion and presenting it at the hearing. The hearing should have only lasted one hour, but was drawn out by much duplicative and extraneous argument and questioning. Therefore, the Court finds that a total of 4 hours is reasonable for both preparation and presentation of the motion.
Accordingly, the Court will grant attorney's fees, pursuant to Rule 37(c), for a total of 77.7 hours at $160.00 per hour *fn6 -- or $12,432.00.
The Court orders the payment of these sanctions to be split between defendants and defense counsel. Defendants' testimony revealed that they knew about the monthly summary reports at the time they allegedly discussed production pursuant to plaintiff's document request. Messrs. Agnesino and Abbott testified that they discussed the document request and the best way to respond to it. *fn7 Yet, they never revealed the existence of the reports, despite the fact that the reports were forwarded from the office of one defendant in the case, Agnesino's building department, to another defendant, Mayor Kreischer, on a monthly basis. There was no testimony that defendants did not know that the reports contained responsive information; instead, they testified only that the reports were not produced because they believed they contained inaccurate and incomplete information. This is not a basis upon which to conceal relevant information that is directly responsive to a legitimate discovery request. The individual defendants clearly violated their discovery obligations.
With respect to defense counsel, although there is no evidence that Mr. Barker knew about the monthly summary reports before Mayor Kreischer's deposition, there is also no evidence that he asked his clients whether they had any data compilations that contained the information requested by Ms. Parker before he personally represented to the Court that there were none. Further, there is no evidence that he ever advised the individual defendants of their obligation to produce data compilations under Rules 26(a) and 34, if any were available.
Plaintiff has suffered unnecessary harm as a result of his opponent's dodgy behavior, and the blame is attributable to both defendants and defense counsel. The Court emphasizes that litigants in federal court must be extremely mindful of their discovery obligations, and of how seriously federal courts, particularly the District of New Jersey, view their role in enforcing those obligations. The Federal Rules of Civil Procedure, including Rules 26 through 37, were carefully considered by the United States Supreme Court and Congress, and are continuously studied by the judges, lawyers, and legal scholars that make up the Committees that report to the Judicial Conference of the United States, in order to eliminate as many impediments as possible to the efficient pursuit of justice in this country. See Rule 1, Fed. R. Civ. P. ("[These rules] shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."); cf. Rule 26(b)(2)(i), Fed. R. Civ. P. ("the discovery sought . . . is obtainable from some other source that is more convenient, less burdensome, or less expensive"). In other words, Rule 37 exists for a real purpose. For the reasons discussed above, the Court finds its application warranted in these circumstances.
Accordingly, plaintiff's motion for sanctions shall be granted in accordance with the Order attached hereto and entered on this date.
THIS MATTER having been brought upon motion before the Court by Lynne M. Parker, Esquire, attorney for plaintiff, for an Order for discovery sanctions; and the Court having considered the moving papers and the opposition thereto, and having held a hearing on this matter on August 6, 1999; and for good cause
IT IS this 8th day of September, 1999 hereby
ORDERED that plaintiff's motion is GRANTED. Sanctions are hereby awarded pursuant to Fed. R. Civ. P. 37(c) in the amount of $12,432.00, under the following conditions:
(1) A. Michael Barker, Esquire, is hereby ordered to pay $6,216.00 to plaintiff's counsel, Lynne M. Parker, Esquire;
(2) Defendants City of Ventnor City, John Scott Abbott, Esquire, Timothy Kreischer, James G. Agnesino, Charles Vespertino, William W. Rutley, David F. Mullane, James Reeves Goos, Rocco C. Georgio, Daniel J. Cahill, and John M. Bagnell are hereby ordered to pay $6,216.00 to plaintiff's counsel, Lynne M. Parker, Esquire; and
(3) These sanctions are payable within sixty (60) days of the date of this Order.
ROBERT B. KUGLER United States Magistrate Judge
cc: Hon. Joseph E. Irenas