4 F.3d 1313 (5th Cir. 1993), 92-1668, Chilcutt v. United States

Docket Nº:92-1668.
Citation:4 F.3d 1313
Party Name:Brenda CHILCUTT, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. Randell P. Means, in his individual capacity, Appellant.
Case Date:October 25, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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4 F.3d 1313 (5th Cir. 1993)

Brenda CHILCUTT, et al., Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant-Appellant.

Randell P. Means, in his individual capacity, Appellant.

No. 92-1668.

United States Court of Appeals, Fifth Circuit

October 25, 1993

Rehearing Denied Dec. 22, 1993.

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[Copyrighted Material Omitted]

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Richard H. Stephens, U.S. Atty., Ft. Worth, TX, John F. Daly, Barbara C. Biddle, Appellate Sect., Civ. Dev., Dept. of Justice, Washington, DC, for defendant-appellant.

Kelly Robbins Harrington, Irving, TX, for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before JOHNSON, JOLLY, and JONES, Circuit Judges.

JOHNSON, Circuit Judge:

When the defendant, United States of America, failed to properly respond to the plaintiffs' discovery requests in the case sub judice, the district court ordered the Government to produce previously requested documents and respond to unanswered interrogatories. The court also ordered the Assistant United States Attorney ("AUSA"), Mr. Randell Means, to personally reimburse the plaintiffs for attorney's fees which arose from the Government's discovery abuse. When the Government disobeyed the district court's order to fulfill its discovery obligations and attempted to deceive the court and the plaintiffs into believing that certain documents properly requested either did not exist or were not requested, the district court, exercising authority granted in Rule 37 of the Federal Rules of Civil Procedure, deemed that the liability facts of the plaintiffs' case were established for the purposes of the case. The Government and Mr. Means aver that the district court abused its discretion in sanctioning them. We disagree and therefore affirm.

I. Facts and Procedural History

On October 4, 1988, Brenda Chilcutt Wortham, 1 performing her duties as an employee

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of Chrysler First, Inc., visited the River Bend Post Office in Fort Worth, Texas, to pick up the company's mail. Soon after she entered the post office, she slipped and fell. The fall resulted in serious injuries which required Ms. Wortham to undergo several major surgeries and extensive medical care. Ms. Wortham's workers' compensation carrier, Home Indemnity Company ("HIC"), alleged that governmental negligence had caused Ms. Wortham's fall. HIC therefore filed an administrative claim with the United States Postal Service ("USPS") in August 1990, seeking reimbursement for monies paid Ms. Wortham for her work-related injury. Ms. Wortham filed a similar claim in October of the same year. The USPS denied both claims.

Ms. Wortham and HIC later commenced this action in the Northern District of Texas, suing under the Federal Torts Claims Act. In its initial scheduling order, filed on July 17, 1991, the district court stated that "[s]hould any party or counsel fail to cooperate in doing anything required by this order to be done, such party or counsel or both will be subject to sanctions, including dismissal or entry of default without further notice." R. at 26. In the court's memorandum attached to the scheduling order, entitled "Special Pretrial Instructions," the court informed the parties that it expected counsel for each party to cooperate fully in the discovery process. The court further warned that it would not tolerate discovery abuses, stating that "[u]nnecessary discovery or unreasonable delay may subject the infracting party to sanctions and the payment of costs." R. at 28. The court admonished the parties in the same manner in revised scheduling orders which were filed on February 27, 1992, and March 9, 1992. 2

On March 24, 1992, Ms. Wortham served interrogatories and requests for production of documents and things on Randell Means, the AUSA in charge of the case. 3 In early April, she reiterated her request for many of the documents and things in subpoenas duces tecum. Although the Government produced some of the requested items for depositions, it did not answer or object to the requests for production or the interrogatories. Counsel for Ms. Wortham, Ms. Kelly Robbins, talked with Mr. Means several times by telephone and in person, both before and after the answers were due. She informed him that time was of the essence and reminded him that the discovery cut-off date was May 8. During each discussion, Mr. Means informed Ms. Robbins that he was preparing responses to the discovery requests and assured her that the answers were forthcoming. In reality, the answers were not forthcoming; Ms. Robbins' efforts to extract answers from Mr. Means were of no avail.

On May 19, 1992, twenty-six days after the Government's discovery answers were due, Ms. Robbins filed a motion to compel and a motion for sanctions. The district court scheduled a hearing on those motions for May 22. Mr. Means served Ms. Robbins with answers to some of the interrogatories and objected to others the morning of the hearing. However, at the hearing Ms. Robbins complained, not only about the tardiness of the recently-supplied answers and objections, but she also asserted that a number of the answers to the interrogatories were incomplete. 4 Further, although Mr. Means provided some important documents in response to the requests for production on the

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morning prior to the hearing, 5 he failed to produce other requested documents. In his answers to the production requests and again at the hearing, Mr. Means averred that at least half of the requested documents did not exist. One such document was an accident log which the plaintiffs claimed Mr. Svede, the Fort Worth USPS accident investigator and the Government's representative for this action, maintained. 6 Another was a standard accident report ("Form 1769").

The district court, reviewing these and other discovery infractions, refused to grant the plaintiffs a default judgment. He determined that such a penalty was too harsh under the circumstances before him. 7 Nonetheless, finding that the Government's conduct was not substantially justified and that no circumstances existed which made sanctions inappropriate, the court concluded that a lesser sanction was, indeed, appropriate. The court first ordered the Government to deliver every document called for by the plaintiffs' requests for production to Ms. Robbins' office by May 27. The court directed Mr. Means to attach an affidavit to his responses to the discovery requests certifying that he, Mr. Means, had made inquiries which were calculated to disclose the existence of any document or tangible thing for which the production requests or subpoenas duces tecum called. 8 Additionally, the court ordered the Government to produce Ms. Chapman for a deposition on May 28 since the Government had failed to question her. Further, based upon the authority provided under Rule 37(d), the court ordered Mr. Means to pay for those deposition costs and all of the attorney's fees and other expenses the plaintiffs had incurred in preparing the motion to compel and the motion for sanctions. The court stated that these sanctions were against the attorney, not against the United States, and forbade Mr. Means from seeking reimbursement from the Government. 9 The court also informed Ms. Robbins that after she reviewed the Government's recently provided responses to her discovery requests, she could file supplemental motions to compel and for sanctions if she so needed.

She did so. Among other things, she complained in her supplemental motions of the Government's failure to produce the Form 1769 and Mr. Svede's accident log. With respect to the latter, Ms. Robbins specifically pointed out that "Al Svede testified in his deposition (at page 114, line 16) that he keeps a log which, among other things, would contain information relating to types of claims

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and their disposition. Defendant has never produced this log." R. at 239.

Mr. Means responded to a large number, but not all, of Ms. Robbins' allegations. 10 Important for our purposes, Mr. Means stated that he had produced the only accident log that was responsive to the plaintiffs' production requests. 11 The hearing on this supplemental motion for sanctions occurred on Thursday, June 4, 1992, just four days--only one working day--prior to the scheduled trial. During that hearing, Mr. Means again claimed that although Mr. Svede possessed an accident log, it was not covered by the plaintiffs' requests for production. 12 Mr. Means again testified that no Form 1769 existed, claiming, "As I understand, the plaintiff says she filled that out and gave it to the witness on that date. Our position is that did not happen." Tr. Vol. 5 at 57.

Due to the numerous discrepancies between the plaintiffs' claims and the defendant's response, the court directed the Government to bring its witnesses, including Mr. Svede, to the court later on the same day. One of the first questions the court asked Mr. Svede concerned the existence of the Form 1769. Mr. Svede testified under oath that not only did the Form 1769 exist, but that he possessed a copy of that form. 13 If

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that were not bad enough for the Government, when Ms. Robbins asked Mr. Svede whether he had listed Ms. Wortham's accident in his accident log, he answered that he had done so. Mr. Svede presented the log to the court to review, and it did, indeed, list Ms. Wortham's accident, contrary to Mr. Means' earlier statement that it did not. 14

The court disagreed, finding that several of the requests covered the accident log. The court further found that although the Government and the people working on the case knew that the log existed and that it was called for by the requests for production, the Government chose to withhold the documents in derogation of the...

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