Solis-Alarcon v. U.S.
| Decision Date | 21 September 2007 |
| Docket Number | Civil No. 05-1987(SEC). |
| Parties | Silvio SOLIS-ALARCON, et al., Plaintiffs, v. UNITED STATES of America, et al, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Luis A. Melendez-Albizu, Luis A, Melendez Albizu Law Office, San Juan, PR, for Plaintiffs.
Fidel A. Sevillano-Del-Rio, United States Attorney's Office, San Juan, PR, for Defendants.
Before the Court are Federal Defendants' Motion for Summary Judgment (Docket # 77) and Plaintiffs' Motion Requesting Order under Rule 37(c)(1) (Docket # 90). Because the latter motion seeks to strike a death blow to the summary judgment motion by requesting that the Court exclude all evidence submitted in support thereof, we address it first and then turn to the summary judgment motion.
In order to clarify, however, we note that the briefing of the motions is as follows: Federal Defendants' Motion for Summary Judgment (Docket # 77) was opposed by Plaintiffs at Docket # 92, Federal Defendants replied to such opposition at Docket # 112 and Plaintiffs sur-replied at Docket # 115; Plaintiffs' motion under Rule 37(c)(1) (Docket # 90) was opposed by Federal Defendants at Docket # 94, Plaintiffs replied at Docket # 105 and Federal Defendants sur-replied at Docket # 112.1
Plaintiffs request that the Court exclude the evidence Federal Defendants submitted in support of their request for summary judgment. The ground for Plaintiff's request is that Federal Defendants did not disclose and/or produce documents that, pursuant to Fed.R.Civ.P. Rule 26(A)(1)(B) and 26(e), should have been so disclosed and/or produced. Plaintiffs complete this argument by pointing to Fed.R.Civ.P. 37(c)(1)'s exclusion provision. Federal Defendants argue that no such remedy is necessary; that they did not fail to comply with the requirement of Fed.R.Civ.P. Rule 26, and that Plaintiffs' motion is simply a subterfuge to cover up their failure to conduct discovery within the time allotted by the Court.
We provide a brief procedural background. The parties filed a Joint Rule 26 Report on June 22, 2006 (see, Docket # 54). Therein, Federal Defendants identified the following items as pertaining to Rule 26(a)(1)(B) disclosures:
(1) DEA-6, Report of Investigation (ROI), prepared on Sept. 18, 2003 by SA Felton Cameron.
(2) DEA-6, Report of Investigation (ROI), prepared on April 12, 2003 by Jose O. Rodríguez.
(3) DEA-6, Report of Investigation (ROI), prepared on April 15, 2003, by Task Force Agent Carlos Strubbe.
(4) DEA Memorandum dated March 18, 2003, review of DEA Quick Release Policy for Seized Property.
(5) DEA Seizure Form, Asset No. 03-DEA-426573.
(6) Vehicle Indemnity Agreement, Asset No. 03-DEA-426573.
(7) Claim for Damage, Injury or Death, dated Sept. 20, 2004, submitted by Migdalia Marques Roberto.
(8) Claim for Damage, Injury or Death dated Sept. 20, 2004, submitted by Silvio Solís Alarcón.
(9) Arrest Warrant for Juan Díaz Suazo.
Docket # 54, p. 4. After listing the above items, Federal Defendants added:
These documents shall be produced forthcoming. Defendants reserve the right to supplement the foregoing list. The information regarding any other document to be initially disclosed pursuant to Fed.R.Civ.P. 26(a)(1), if any, will be provided by Defendants in response to Plaintffs' First Set of Interrogatories and Document Requests.
We turn now to the motion for summary judgment. In support thereof, Federal Defendants included the following evidence:
(1) DEA Operational Plan, prepared by DEA agents Avilés, Feliciano, Rodríguez, and Harris, and dated September 17, 2003. (Docket # 78-2)
(2) Plaintiffs' Answers to Defendants' First Set of Interrogatories (Docket # 78-6)
(3) DAVID Information regarding registered vehicles. (Docket # 78-3, p. 8-10; Docket # 78-8)
(4) Carlos R. Strubbe's June 23, 2003 Report of Investigation. (Docket # 78-3, p. 11-12)
(5) Several photographs, with handwritten captions identifying the locations. (Docket # 78-3, p. 13-16)
(6) Felton Cameron's October 9, 2003 Report of Investigation. (Docket # 78-5, p. 4-6)
(7) Greg Calam's February 18, 2004 Personal Story Report (Docket # 78-11, p. 8-9)
(8) Juan Díaz-Suazo's prints
(9) Declarations by Roberto Cruz — Perez (Docket # 78-3); Greg Calam (Docket # 78-4); Felton Cameron (Docket # 78-5); Fernando Colon (Docket # 78-7); Miguel Melendez (Docket # 78-9); Julio Abreu — Lora (Docket # 78-10); Pablo Rivera (78-11).2
(10) Arrest warrant for Juan Díaz Suazo (Docket # 78-4)
Before delving into the intricacies of Fed.R.Civ.P. Rules 26 and 37, a few clarifications are in order. Plaintiffs allege that Federal Defendants failed to produce the documents disclosed as per the Rule 26 Report, despite the fact that the latter stated in such report that production would be forthcoming. Federal Defendants have not addressed this point in their opposition to the motion to exclude. Accordingly, the Court concludes that Federal Defendants failed to produce the documents, despite their assertion that they would. The Court notes, also, that although among the documents identified by Federal Defendants in the initial disclosures there are several reports of investigation identified by date and author, the reports of investigation submitted in support of the motion for summary judgment bear different dates. For example, Federal Defendants included in their initial disclosures a September 18, 2003 Report of Investigation by Felton Cameron, but the Report of Investigation by Cameron submitted with the motion for summary judgment is dated October 9, 2003. The Court assumes that these are two different documents and treats them as such.
There are two separate R. 26 issues facing the Court: (1) whether Federal Defendants ran afoul of the rule when they disclosed but failed to produce the documents identified in the Rule 26 Report (Docket # 54) and (2) whether their failure to disclose the remaining documents used in support of the summary judgment motion (other than the declarations by the witnesses) also constituted a violation of the duty to disclose and supplement such disclosures.
Fed. R. 26(a)(1)(B) requires a party "without awaiting a discovery request," to provide "a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment." Subdivision (e) of Fed. R.Civ.P. 26, in turn, orders supplementation of initial disclosures made pursuant to subdivision (a) "if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing."
Plaintiffs would have us hold that because Federal Defendants did not produce the documents they disclosed, despite having stated that production would be forthcoming, they ran afoul of Fed. R. 26(a)(1)(B). The Notes by the Advisory Committee to the 1993 Amendments to Rule 26 address the issue of disclosure vs. production squarely:
Unlike subparagraphs (C) and (D), subparagraph (B) does not require production of any documents. Of course, in cases involving few documents a disclosing party may prefer to provide copies of the documents rather than describe them, and the rule is written to afford this option to the disclosing party. If, as will be more typical, only the description is provided, the other parties are expected to obtain the documents desired by proceeding under Rule 34 or through informal requests.
Per the above, we conclude that Federal Defendants could have met their Fed. R.Civ.P. Rule 26(a) obligation by merely describing to Plaintiffs the documents in their possession/custody/control that could be used in support of their claims and defenses. Federal Defendants, however, voluntarily assumed the further duty to produce the initially disclosed documents "forthcoming". Rule 26(a)(1)(B) poses no bar for such conduct; indeed, as the Advisory Committee Notes reflect, the rule allows for the possibility that a defendant produce the documents subject to initial disclosures.
A question remains, however, as to the appropriate sanction for such failure. Strictly speaking, Federal Defendants failed to comply with a self-imposed duty, not one contained in Fed.R.Civ.P. 26(a)(1)(B). The sanctions included in Fed.R.Civ.P. 37(c)(1) refer to failures to comply with Rules 26(a) or 26(e)(1) and (2). Here, Plaintiffs were aware not only of the existence of the initially disclosed documents, but also of Federal Defendants' pledge to produce them shortly. When Federal Defendants delayed in such production, Plaintiffs could and should have recurred to formally requiring Federal Defendants to comply with their duty. To that end, the Court notes that Plaintiffs could have attempted — via letter or email — to remind Federal Defendants of the pendency of the production of documents and, if that proved unsuccessful, recur to a request pursuant to Fed. R.Civ.P. 34. That latter tactic, in turn, would have placed Plaintiffs in the position of applying to the Court for relief under Rule 37(a) if Federal Defendants remained unresponsive. Plaintiffs, however, did not take these steps. Instead, Plaintiffs sat idly by and let the discovery deadline expire without pursuing the promised production of documents. Even at the close of the discovery period, when Counsel for Plaintiffs unsuccessfully requested an extension of time to conclude discovery (see Docket # 69) alleging that several problems had marred discovery, no mention was made as to Federal Defendants' failure to comply with their self-imposed production duty.
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