United States District Court, D. Nevada
ORDER (Mot Sanctions - Dkt. #131)
PEGGY A. LEEN, Magistrate Judge.
The court held a hearing on Plaintiff's Motion for Sanctions (Dkt. #131) on March 17, 2015. Devin McRae appeared on behalf of the Plaintiff, and Matthew Cecil, Kimberly Gost, and Matthew Hank appeared on behalf of the Defendants. The court has considered the motion, Defendants' Memorandum of Points and Authorities in Opposition (Dkt. #137), Plaintiff's Reply (Dkt. #138), Plaintiff's Errata (Dkt. #139), and the arguments of counsel at the hearing. Having reviewed and considered the moving and responsive papers and arguments, the motion will be granted to the limited extent described below, and denied in all other respects.
I. The Complaint.
The complaint in the case was filed in state court and removed (Dkt. #1) January 13, 2012. An Amended Complaint (Dkt. #19) was filed March 8, 2012. Plaintiff seeks to certify a class of individuals who were employed in Iraq as armed guards for a private security contractor, Defendant SOC, LLC ("SOC"). The amended complaint alleges eighteen claims for promissory fraud, negligent misrepresentation, unjust enrichment - fraud, breach of contract and breach of the covenant of good faith and fair dealing, quantum meruit, unjust enrichment and multiple violations of state and federal wage and hour laws pertaining to overtime, rest days and meal periods.
Plaintiff claims that he and other similarly situated class members were recruited to provide security services in Iraq under false promises of a fixed salary and a schedule with paid time off. However, after they were physically transported to Iraq, Plaintiff and other armed guards were inserted into situations that required work in ultra-hazardous conditions in excess of twelve hours per day, without meal or rest periods, seven days per week and without any overtime compensation. These practices violated state and federal wage and hour laws. They also violated SOC's contract with the Department of Defense which requires SOC to manage its work force in a manner that does not require any guard or guard team leader to work any longer than one twelve-hour shift per twenty-four hour period, and not more than seventy-two hours per week.
II. The Parties' Positions.
A. The Motion to Compel.
In the current motion, Plaintiff seeks sanctions under Rule 37, asserting Defendants violated the court's November 18, 2014, order requiring that Defendants produce certain documents and produce a fully educated Rule 30(b)(6) designee to testify on three topics. Specifically, Plaintiff requests an order: (1) precluding the Defendants from presenting any evidence at trial regarding staffing which is different from, or beyond, what was produced in discovery; (2) an order imposing monetary sanctions for failure to comply with the order to produce a fully educated Rule 30(b)(6) designee on Topic 21 because the designee was not knowledgeable about whether Defendants had staffed individual posts at bases to which they provided security services in Iraq any differently from the bidding numbers which they provided in discovery, and also failed to offer a satisfactory explanation for Defendants' aggregate armed guard numbers provided to the Plaintiff in supplemental disclosures December 10, 2014, after the close of discovery.
Plaintiff argues that he recently discovered that Defendants were "bidding to the man" to win a government contract as late as 2011. This is a practice which involves bidding only the exact number of guards required to fill a request from the government. "Bidding to the man" eliminates rotation personnel and guarantees a shortage of manpower. Plaintiff believed that Defendants were "stonewalling" and filed a prior Motion to Compel (Dkt. #90) which the court set for hearing on November 18, 2014. At the hearing, "the parties honed in on the distinction between the number of guards bid by Defendants for individual posts at bases in Iraq versus the number of guards ultimately staffed at those posts." The court required the Defendants to produce certain documents relating to bidding and staffing and to produce a Rule 30(b)(6) deponent "to testify about the bidding versus staffing distinction focused upon by the parties at the hearing." Plaintiff claims that Defendants' Rule 30(b)(6) designee, Eileen Chipp, was unqualified to testify regarding certain subjects that Plaintiff maintains were included in the Rule 30(b)(6) notice.
Plaintiff claims that after the close of discovery, and after the parties filed motions for summary judgment, and Plaintiff filed a motion for class certification, Defendants amended their interrogatory responses to reduce the aggregate armed guard numbers they provided in prior responses by more than 2500 guards. Ms. Chipp explained the discrepancy during a Rule 30(b)(6) testimony. However, Plaintiff claims that the answer provided was conclusory and based on a single fifteen minute conversation with one of Defendants' employees. For both reasons, Plaintiff maintains that the Defendants violated the court's order by failing to produce a designee qualified to testify on the subject matters the court ordered. Additionally, Defendants produced approximately 4, 000 pages of documents pursuant to the court's order on December 2, 2014. Plaintiff's counsel reviewed the documents and noticed many documents were missing, including statements of work. The documents produced suggested that a significantly lower number of guards had been employed than the 4, 220 guards claimed in answers to interrogatories. Defendants produced an additional 26, 000 pages of additional documents which caused the Rule 30(b)(6) deposition to be delayed while Plaintiff reviewed them.
The declaration of Mr. McCrae was submitted with the motion and asserts that Exhibit 4 is a true and correct copy of the transcript of Ms. Chipp's deposition. However, a copy of the transcript was not filed under seal or otherwise. Exhibit 4 to Docket #131 is a cover page that says "filed under seal pursuant to Local Rule 10-5". Nothing is attached.
B. Defendants' Opposition.
Defendants oppose the motion arguing the Plaintiff has not identified any aspect of the court's November 18, 2014, order which Defendants violated. Additionally, Defendants argue Plaintiff has not shown prejudice and the sanctions Plaintiff seeks bear no relation to the ostensible violation of the order. Plaintiff filed a Motion to Compel (Dkt. #90), Motion to Extend Deadlines (Dkt. #91), and Motion for Sanctions (Dkt. #92) five days after the close of the discovery cutoff. Defendants opposed the motions and requested that the court deny all forms of relief because the Plaintiff had failed to specify what documents, information, and testimony Defendants allegedly withheld in discovery, failed to identify which discovery requests were at issue, or show why the information sought was relevant and why Defendants' objections were not meritorious. The court held a hearing on November 18, 2014, and entered a minute order the following day granting Plaintiff limited relief. At the hearing, the court engaged in extensive back-and-forth with Plaintiff's counsel to determine exactly what documents and information Plaintiff sought to compel and to identify to what discovery requests those documents and data were allegedly responsive. The court's minute order granted limited relief in requiring Defendants to produce certain documents identified in the minute order and to produce a fully educated Rule 30(b)(6) designee on Topics 3, 21 and 30 of the 33 topic deposition notice, and attached request for production of documents.
Defendants assert that they completely complied with the court's order and produced a Rule 30(b)(6) deponent to address the topics as ordered. However, on January 23, 2015, two days before the Rule 30(b)(6) deposition, Plaintiff issued a new notice of deposition which purported to expand Topic 21. Defendants responded that they would not produce a witness on topics the court did not order. Ms. Chipp was produced and testified for a number of hours on the topics as ordered. Ms. Chipp provided the information concerning the number of guards SOC employed in Iraq from 2006 to 2012. She explained why the Defendants' original answers to Plaintiff's first interrogatories were inaccurate about the number of guards employed in Iraq. She testified about the number of hours worked and vacation days taken by guards employed by Defendant between 2006 and 2012.
In addition, she answered questions beyond the scope ordered by the court about how SOC staffed specific posts in Iraq with armed guards. She explained that the difference between the number of guards bid and the number of guards staffed existed because "there were more people who actually worked because of turnover than the numbers that would have been in the bid." She also testified that some of the individuals who staffed the position of armed guards in Iraq were actually supervisors filling in on an as-needed basis when, for example, someone was sick or on vacation. Chipp testified that the number of individuals SOC used to staff a location exceeded the number of individuals bid to staff that location because SOC was able to increase the number of guards at the facility by economizing in other areas. SOC concedes that Ms. Chipp was not prepared to answer questions on how many armed guards were staffed to provide security on a post-by-post basis, or to respond to questions about whose fault the staffing issue was.
Defendants maintain that none of the documentary or testimonial evidence the court ordered the Defendants to produce at the November 18, 2014, hearing establish how SOC staffed individual posts and sites. At the hearing, defense counsel explicitly told the court and opposing counsel that the documents the court ordered ...