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Jiang v. Porter

United States District Court, E.D. Missouri, Eastern Division

August 22, 2016

TONYA LEVETTE PORTER, et al., Defendants.



         This matter is before the Court on plaintiff’s motion for sanctions against defendants SNAP, David Clohessy, and Barbara Dorris (the “SNAP defendants”). Plaintiff argues that the SNAP defendants’ open and public defiance of the Court’s discovery orders and their pattern of discovery abuse warrant the imposition of sanctions under Rule 37 of the Federal Rules of Civil Procedure. The SNAP defendants have responded in opposition, and the issues are fully briefed.

         On June 27, 2016, the Court overruled the SNAP defendants’ assertions of a purported “rape crisis center privilege” and ordered the defendants to provide any requested information that they withheld on that basis. [Doc. #131]; see Mo. Rev. Stat. § 455.003. On July 12, instead of complying with the Court’s order, the SNAP defendants filed a motion for reconsideration that continued to rely on the same meritless invocation of privilege.[1] [Doc. #132]. In denying that motion, the Court gave the SNAP defendants until July 22 to comply with the June 27 order. [Doc. #136]. The Court also warned the SNAP defendants that their failure to comply could result in the imposition of sanctions authorized under Federal Rule of Civil Procedure 37(b)(2). Id. On July 22, instead of complying with the Court’s orders, the SNAP defendants filed a motion to join in purported intervenors’ motion to stay, reiterating their assertion of privilege. [Doc. #137]. On August 8, the SNAP defendants filed a meritless motion for interlocutory appeal of the Court’s June 27 discovery order. [Docs. ## 154, 156]. To date, the SNAP defendants have not produced unredacted copies of documents they have withheld or complete answers to any of the interrogatories to which they have objected on the basis of Mo. Rev. Stat. § 455.003.

         Plaintiff also states that the SNAP defendants have not produced information regarding contributions attorneys at the law firm Chackes, Carlson & Gorovsky made to SNAP from 2005 through 2012, in defiance of the Court’s June 27 order. In support of this contention, plaintiff cites to a secondary source indicating that attorneys at the firm made payments to SNAP in 2010. Plaintiff also points to disclosures and productions from other parties and non-parties, which include communications with the SNAP defendants that the SNAP defendants themselves never produced despite plaintiff’s discovery requests. As such, the record indicates that the SNAP defendants have improperly withheld and may be continuing to withhold documents and information responsive to plaintiff’s discovery requests.

         In response to the instant motion, the SNAP defendants concede that they have willfully disobeyed the Court’s discovery orders, but contend that doing so was necessary to obtain an immediate appeal of the Court’s privilege ruling. However, defendants are not entitled to interlocutory or collateral appellate review of a Rule 37 sanctions order, a civil contempt order, or an adverse privilege ruling. See Coca-Cola Co. v. Purdy, 382 F.3d 774, 792 (8th Cir. 2004) (“The imposition of sanctions for civil contempt during the course of a pending action is an appealable final order only if the person held in contempt is not a party to the pending action.”); Tenkku v. Normandy Bank, 218 F.3d 926, 927 (8th Cir. 2000) (stating that Cunningham v. Hamilton County, 527 U.S. 198 (1999), “held that a sanctions order against a party or her attorney is not an appealable final order”); cf. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113 (2009) (“In short, the limited benefits of applying ‘the blunt, categorical instrument of § 1291 collateral order appeal’ to privilege-related disclosure orders simply cannot justify the likely institutional costs.’” (quoting Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994))). To the extent that the SNAP defendants intend to seek mandamus review, they have provided no explanation as to why they did not do so at the immediately after entry of the June 27 order, instead of continuing to defy the Court’s discovery orders through futile pleadings.

         The Court finds that the SNAP defendants’ refusal to comply with the Court’s discovery orders has been willful and in bad faith. At no time have the SNAP defendants attempted to address their purported confidentiality concerns through other means beyond their repeated assertions of a nonexistent privilege. As plaintiff points out, the SNAP defendants have never proposed targeted redactions of names of third-party victims or attorneys-eyes-only disclosures. The parties in this case entered into an agreed-upon protective order to address their confidentiality concerns, which the SNAP defendants have never attempted to amend. Also, as the Court previously pointed out, the SNAP defendants have not attempted to defend other objections to responding to the discovery requests at issue.[2] Instead of complying with the Court’s orders or seeking viable alternatives to achieving their objectives in compliance with their obligations under the Federal Rules of Civil Procedure, the SNAP defendants have filed four meritless motions rehashing the same arguments and misconstruing the Court’s orders.

         Furthermore, the SNAP defendants’ defiance of the Court’s orders and refusal to provide documents and information in discovery has impaired plaintiff’s ability to litigate his claims against them. For example, the SNAP defendants are withholding documents that evidence communications among them and with friends or relatives of persons who have accused plaintiff of sexual abuse and plaintiffs’ attorneys who have received referrals from SNAP. The existence and content of these communications could support or lead to further evidence that supports plaintiff’s civil rights conspiracy and defamation claims. Thus, the SNAP defendants’ violations have prejudiced plaintiff. See In re O’Brien, 351 F.3d 832, 839 (8th Cir. 2003) (“A finding of ‘prejudice’ under Rule 37(b) is proper if the failure to make discovery impairs an opponent’s ability to determine the factual merits of a party’s claim.”). As such, sanctions are necessary and appropriate in this case.

         Rule 37(b)(2)(A) provides that a district court may “issue further just orders” to a party who fails to obey an order compelling discovery with a panoply of sanctions. These include:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient ...

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