United States District Court, D. Nevada
J. Koppe United States Magistrate Judge
before the Court is an order for Third-Party Defendant Kevin
Harrington and his attorneys (Michael Feder and Gabriel
Blumberg) to show cause why they should not be sanctioned for
failing to comply with the Court's previous discovery
order. Docket No. 345. Mr. Harrington (through his attorneys)
initially responded to document requests with a boilerplate
recitation that he found no responsive documents after his
records were searched and his files were reviewed.
See Docket No. 310. The Court held that such a
response violated Rule 34(a)(1) of the Federal Rules of Civil
Procedure, which requires the responding party to come
forward with an explanation of the search conducted with
sufficient specificity to allow the Court to determine
whether a reasonable inquiry was made. Docket No. 310 at 3-4.
The Court ordered supplemental responses. Id. at 4.
Mr. Harrington's supplemental responses marginally
altered his original 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 reserved the right to supplement to provide
responsive documents in the future. See Docket No.
345 at 2. Given the obvious deficiency with the supplemental
responses, the Court ordered that further supplements be
provided, and ordered Mr. Harrington and his attorneys to
show cause why they should not be sanctioned in a fine for
violating the Court's previous order. Id. at
3-5. The response to that order to show cause indicates in
general terms that Mr. Harrington has been participating in
discovery in good faith and that his counsel believed the
supplemental responses were sufficient. See Docket
No. 353. The response misses the mark. For example, it
indicates that “[Mr.] Harrington and his counsel should
not be sanctioned for lacking responsive documents and
performing a search for responsive documents despite knowing
none would be located.” Docket No. 353 at 3 n.3. Such
an assertion is ridiculous as that is obviously not the issue
before the Court. The Court has made clear on multiple
occasions that a party is not entitled to simply assert that
he looked for responsive documents and did not find any;
he must make a reasonable inquiry to find responsive
documents and must provide a detailed explanation of that
inquiry so the Court can judge whether it was sufficient due
diligence. Docket No. 310 at 3-4; Docket No. 345 at 2;
see also Docket No. 289 at 3-4. This is not a novel
proposition, but rather reflects well-settled law. See,
e.g., Rogers v. Giurbino, 288 F.R.D. 469, 485
(S.D. Cal. 2012); A. Farber & Partners, Inc. v.
Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006). Mr.
Harrington (through his counsel) failed to provide a detailed
description even after being ordered by the Court to do so,
and the response to the order to show cause lacks a plausible
explanation as to how Mr. Harrington and his counsel could
have reasonably believed they were complying with the
Court's order. Instead, Mr. Harrington and his counsel
waited until fines were on the table for violating the
Court's order to file a belated declaration providing a
more detailed recitation of the search undertaken.
See Docket No. 353-2 at ¶¶
the circumstances, the Court would be within its discretion
to impose a fine. See, e.g., Fed. R. Civ. P.
37(b)(2)(A) (courts may issue “just orders” for
disobedience with a discovery order). The Court takes Mr.
Harrington and his counsel at their word that they are
attempting to comply with the Court's orders, and the
Court expects them to strictly comply with their discovery
obligations moving forward. As such, the Court
CAUTIONS Mr. Harrington and his counsel that
they must comply with all applicable rules and all orders
moving forward. FAILURE TO DO SO MAY RESULT IN THE
IMPOSITION OF SANCTIONS, UP TO AND INCLUDING CASE-DISPOSITIVE
SANCTIONS. As this is the second such warning,
see Docket No. 310 at 5, Mr. Harrington and his
counsel should expect the imposition of sanctions for future
other respects, the order to show cause is
 The order to show cause was premised
on two rules, Rule 37(b)(2)(A) and Rule 26(g). The response
to the order to show cause addresses only the latter rule.
See Docket No. 353 at 3.
 What is more, counsel clearly knows
that is not the issue before the Court because he has
attached to the response to the order to show cause a
declaration providing a more detailed recitation of the
search undertaken. See Docket No. 353-2 at
¶¶ 8-9. Counsel's assertion that the Court is
considering imposing sanctions because a party lacks
responsive documents is, at best, disingenuous.
 Concurrently with the filing of the
response to the order to show cause, Mr. Harrington was
required to provide further supplemental discovery responses
to Ms. McCart-Pollak. Docket No. 345 at 3-4. The Court
expresses no opinion herein as to whether the latest search