United States District Court, D. Nevada
ORDER; ORDER TO SHOW CAUSE [DOCKET NO. 326]
J. Koppe, United States Magistrate Judge
before the Court is Third-Party Plaintiff Shana
McCart-Pollak's motion to enforce the order requiring
supplemental discovery responses from Third-Party Defendant
Kevin Harrington. Docket No. 326. Ms. McCart-Pollak also
seeks sanctions. Id. Mr. Harrington filed a response
in opposition, and Ms. McCart-Pollak filed a reply. Docket
Nos. 332, 340. The motion is properly decided without a
hearing. See Local Rule 78-1. For the reasons
outlined below, the motion to enforce is hereby
GRANTED. Moreover, the motion for sanctions
is hereby GRANTED as to Ms.
McCart-Pollak's costs. Lastly, Mr. Harrington, Michael
Feder, and Gabriel Blumberg are ORDERED to
show cause in writing, no later than May 14, 2018, why they
should not be sanctioned in a Court fine of up to $1, 000
McCart-Pollak previously brought a motion to compel further
responses to Requests for Production 1, 2, 3 and 4. Docket
No. 295. In particular, Ms. McCart-Pollak argued that Mr.
Harrington improperly asserted a lack of possession, custody,
or control of responsive documents. See, e.g.,
id. at 7. On January 31, 2018, the Court granted Ms.
McCart-Pollak's motion to compel in pertinent part as
[A] litigant is permitted to respond to a request for
production in appropriate circumstances by indicating that he
lack responsive documents. See Fed. R. Civ. P.
34(a)(1) (parties are required to produce documents that are
in their “possession, custody, or control”).
“[A] party responding to a Rule 34 production request
is under an affirmative duty to seek that information
reasonably available to it from its employees, agents, or
others subject to its control.” A. Farber &
Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal.
2006) (internal quotations and citations omitted). When a
party asserts that he does not have responsive documents,
he must come forward with an explanation of the
search conducted “with sufficient specificity to allow
the Court to determine whether the party made a reasonable
inquiry and exercised due diligence.”
Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal.
. . . Mr. Harrington has failed to provide sufficient detail
as to the inquiry he undertook to find documents responsive
to the disputed requests for production. Boilerplate
attestations that “records” were searched and
“files” were reviewed are not sufficiently
detailed to enable Court review of the sufficiency of the
Accordingly, the motion to compel is GRANTED
in part as to Requests for Production Nos. 1-4, in that Mr.
Harrington shall serve supplemental responses
identifying with particularity the inquiry he
undertook in attempting to locate responsive
documents. That supplemental response shall be
served within 14 days of the issuance of this order, and
shall be certified pursuant to Rule 26(g) of the Federal
Rules of Civil Procedure.
Docket No. 310 at 3-4 (emphasis added). In short, the Court
held that Mr. Harrington's assertion that he searched his
“records” and his “files” was
insufficiently detailed, and the Court ordered that
supplemental responses must be served “identifying with
particularity” the search conducted.
the Court's order, Mr. Harrington supplemented his
responses by indicating that he “searched and reviewed
physical files in his home office as well as electronic
files” to no avail, but that he reserves the right to
supplement to provide responsive documents in the future.
Docket No. 326 at 71-74. In responding to Ms.
McCart-Pollak's pending motion to enforce the Court's
order, Mr. Harrington asserts that he does not have
responsive documents. See Docket No. 332 at 4-6. Mr.
Harrington's papers are essentially unresponsive to the
issue before the Court. Mr. Harrington was not ordered to
state again that he has no responsive documents; he was
ordered to provide a detailed explanation of the inquiry
undertaken to find responsive documents. Mr. Harrington has
now marginally changed his answers from searching
“records” and reviewing “files, ”
Docket No. 298-2 at ⁋ 5, to searching and reviewing
“physical files in his home office as well as
electronic files, ” Docket No. 326 at 5, 11, 13, 15.
This response is not sufficient. Most obviously, Mr.
Harrington provides no explanation of the electronic files
searched or the means of searching them. Cf. F.D.I.C. v.
26 Flamingo, LLC, 2013 WL 3975006, at *3 (D. Nev. Aug.
1, 2013) (holding that declaration that electronic search was
completed using various terms to “search the
system” was insufficiently detailed, given that the
declaration failed to provide details about the system
searched, whether there were other sources of documents that
could be searched, when the search was performed, or whether
the documents in the “system” were in searchable
format). Nor has Mr. Harrington provided any information
about the physical files searched, other than that they are
in his home office. Mr. Harrington provides no legal authority
or even argument that his latest description passes
muster. Accordingly, the Court will
GRANT the motion to enforce its prior order
(Docket No. 310) and will again ORDER Mr.
Harrington to supplement his responses within 14 days of the
issuance of this order.
determined that Mr. Harrington failed to comply with the
order compelling discovery, the Court turns to Ms.
McCart-Pollak's request for sanctions. As a starting
point, the Court must award expenses to the victor absent a
showing that the loser was substantially justified or there
exist unjust circumstances. Fed.R.Civ.P. 37(b)(2)(C). The
losing party has the burden of establishing substantial
justification or unjust circumstances. Falstaff Brewing
Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.
1983). In this case, Mr. Harrington provides no argument of
any kind in response to the request for sanctions. Moreover,
as outlined above, Mr. Harrington provides no legal authority
or argument that his supplemental discovery responses
provided a sufficiently detailed description of the search
undertaken as required to comply with the Court's order.
Substantial justification or unjust circumstances have not
been shown. Accordingly, the Court will
GRANT Ms. McCart-Pollak's request for
expenses pursuant to Rule 37(b)(2)(C). The Court encourages
the parties to confer on an amount of expenses to be awarded.
To the extent they cannot agree on an amount, Ms.
McCart-Pollak shall file a “Motion to Calculate
Expenses” no later than May 14, 2018.
addition, when a party fails to comply with an order
compelling discovery, a variety of other sanctions may be
imposed, up to and including case-dispositive sanctions and
initiation of contempt proceedings. Fed.R.Civ.P.
37(b)(2)(A)(i)-(vii). Additionally, the Court “may
issue further just orders, ” Fed. R. Civ. PP.
37(b)(2)(A), which includes orders imposing Court fines,
see, e.g., Pereira v. Narragansett Fishing
Corp., 135 F.R.D. 24, 27 (D. Mass. 1991). Similarly, the
Court may impose a fine as an “appropriate
sanction” for the improper certification of discovery
responses. Fed.R.Civ.P. 26(g)(3); see also Travel Sentry,
Inc. v. Tropp, 669 F.Supp.2d 279, 286-87 (E.D.N.Y.
2009). In this case, the very order that Mr. Harrington and
his counsel disobeyed expressly
“CAUTION[ED] Mr. Harrington and his
attorneys that they must strictly comply with the Court's
orders and all applicable rules moving forward.” Docket
No. 310 at 5. Nonetheless, as outlined above, Mr. Harrington
and his attorneys violated that order and made no effort to
argue otherwise in responding to the instant motion to
enforce and for sanctions. Given these circumstances and
given that the expenses awarded to Ms. McCart-Pollak will
likely be relatively insignificant, it appears that it may
also be necessary to impose a fine. Cf. Jones v.
Zimmer, 2014 WL 6772916, at *8, 11 (D. Nev. Dec. 2,
2014). Accordingly, Mr. Harrington, Michael Feder, and
Gabriel Blumberg are ORDERED to show cause
in writing, no later than May 14, 2018, why they should not
be sanctioned in a Court fine of up to $1, 000 each.
 This is not meant as an exhaustive
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