United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
This court has been directed by Senior District Judge Larry R. Hicks to address the merits of certain of Plaintiff's motions for discovery sanctions. (Doc. #304.) In an order dated June 4, 2014, Judge Hicks outlined Plaintiff's contentions about the undersigned's disposition of four earlier motions for sanctions as follows:
Third, Fernandez objects to the Magistrate Judge's summary denial of his motions for sanctions. See Doc. #211, pp. 4-5. Specifically, Fernandez argues that the Magistrate Judge's denial of his motions under Federal Rule of Civil Procedure 37(b) was inappropriate because he sought sanctions pursuant to Federal Rules of Civil Procedure 37(d), 26(g), and 36(a), and the Court's inherent authority. See id. at 5. Indeed, the Magistrate Judge denied all of Fernandez's Motions for Sanctions (Doc. #122, Doc. #151, Doc. #161, and Doc. #163) pursuant to Federal Rule of Civil Procedure 37(b), which provides that sanctions are generally only appropriate where there has been a failure to comply with a discovery order. See Doc. #200, p. 4 n. 4. However, Fernandez sought sanctions pursuant to Federal Rule of Civil Procedure 37(d)(1)(A)(ii) for failure to respond to interrogatories (Doc. #122), the court's inherent discretionary authority for spoliation of evidence (Doc. #151), Federal Rules of Civil Procedure 37(d)(1)(A)(ii) and 26(g)(3) (Doc. #161) for failure to respond to interrogatories and improper certification, and Federal Rule of Civil Procedure 36(a)(3) for failure to timely respond to requests for admissions (Doc. #163).
Judge Hicks concluded that
[b]ecause the Magistrate Judge did not determine the merits of Fernandez's Motions for Sanctions pursuant to the authority under which he sought relief, the Court finds that the Magistrate Judge's determination in this regard was contrary to law and remands for an appropriate determination thereof.
Order, Doc. #304 at 2-3.
The discovery sanction motions identified by Plaintiff and referred to by Judge Hicks are Doc. #122 (failure to respond to interrogatories), Doc. #151 (spoliation of evidence), Doc. #161 (failure to respond to interrogatories and improper certification), and Doc. #163 (failure to timely respond to requests for admissions).
This Order will review the history and disposition of Plaintiff's discovery motions and discuss whether sanctions are appropriate, with the exception of Doc. #151 which pertains to Plaintiff's allegations of spoliation of evidence. This court has already commenced revisiting Doc. #151 and has directed the parties to respond to certain spoliation contentions raised by Plaintiff. See, Order, Doc. #280; see also Order, Doc. #302, re Plaintiff's Motion for Reconsideration of Order (#280).
This Order will address Plaintiff's requests for sanctions in the three remaining discovery matters identified by Judge Hicks, Doc. #122, #161 and #163.
I. STANDARDS FOR SANCTIONS
Plaintiff's contentions invoke the sanction provisions of various sections of the Federal Rules of Civil Procedure. Plaintiff's request for sanctions in #122 is predicated upon Federal Rule of Civil Procedure 37(d)(1)(A)(ii). Motion #161 is based upon two rule provisions, again on Fed.R.Civ.P. 37(d)(1)(A)(ii) and also on Rule 26(g)(3). Motion #163 was predicated upon Fed.R.Civ.P. 36(a)(3). The court will first review the provisions of the Federal Rules of Civil Procedure relating to sanctions cited by Plaintiff, which provide in, pertinent part, as follows:
A. Rule 26(g)(3)
Rule 26. Duty to Disclose; General Provisions Governing Discovery
(g) Signing Disclosure and Discovery Requests, Responses and Objections.
* * *
(3) Sanction for Improper certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.
The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
The "sanction" under this rule arises if there has not been substantial compliance with Rule 26(g)(1), "Signing Disclosure and Discovery Requests, Responses and Objections." A party or an attorney signing on a party's behalf must certify
* * * that to the best of the person's knowledge, information, and belief formed after reasonable inquiry:
(A) with respect to a disclosure, it is complete and correct as of the time it is made; and
(B) with respect to a discovery request, response or objection, it is:
(i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
The attorney (or party) signing the response is under a duty to make reasonable inquiry into the subject of the discovery responses. Green Leaf Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d 1292, 1305 (9th Cir. 2003). Under Rule 26(g), where an attorney (or party) "without substantial justification" makes a certification in violation of Rule 26(g), the court ...