United States District Court, W.D. Missouri, Western Division
ELIZABETH O'SHAUGHNESSY, MICHAEL O'SHAUGHNESSY, and RANDALL L. HENSLEY, Plaintiffs,
CYPRESS MEDIA, L.L.C., Defendant.
ORDER GRANTING IN PART MOTION FOR SANCTIONS
KAYS, CHIEF JUDGE.
lawsuit arises from Plaintiffs' allegations that
Defendant Cypress Media, L.L.C. (“Cypress”),
unlawfully “double-billed” them for newspaper
subscriptions. Plaintiffs brought this case as a class
action, and the Court subsequently denied Plaintiffs'
motion for class certification.
before the Court is Plaintiffs' Motion to Strike
Defendant's Motion for Summary Judgment (Doc. 138).
Plaintiffs argue that Cypress violated Federal Rules of Civil
Procedure 26 and 37 by failing to disclosing seventy-five
documents until three weeks after the close of discovery, and
that this late disclosure prejudiced them by causing the
Court to deny class certification. Plaintiffs ask the Court
to strike Cypress's summary judgment motion and impose
unspecified additional sanctions. Plaintiffs have also filed
a renewed motion for class certification (Doc. 141) based on
the new documents.
responds that the November 2015 production was primarily a
supplemental production, the disclosure did not violate any
discovery rule or order, and Plaintiffs were not prejudiced.
motion is GRANTED IN PART. The Court holds that some of these
documents were untimely disclosed in violation of Rule 26,
but only the late disclosure of the subscription
invoice/renewal form templates prejudiced Plaintiffs, and
this prejudice was relatively mild. Nothing in these
late-disclosed documents alters the Court's class
certification ruling or otherwise justifies granting
Plaintiffs the drastic relief they seek. That said, the late
disclosure of the subscription invoice/renewal form templates
violated Rule 37, and so the Court orders Cypress to pay the
reasonable expenses, including attorney's fees, caused by
the violation. The Court will determine the exact amount of
this sanction after the parties have briefed the issue.
other things, Federal Rule of Civil Procedure 26 requires a
party, “without awaiting a discovery request, [to]
provide to the other parties: (ii) a copy-or a description by
category and location-of all documents . . . that the
disclosing party has in its possession, custody, or control
and may use to supports its claims or
defenses.” Fed.R.Civ.P. 26(a)(1)(A). It also requires
a party who has responded to an interrogatory or request for
production to supplement or correct its disclosure or
(A) in a timely manner if the party learns that in some
material respect the disclosure or response 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.
Fed. R. Civ. P. 26(e)(1)(A). By signing a disclosure or
discovery response, the signing attorney “certifies
that to the best of the person's knowledge, information,
and belief formed after a reasonable inquiry, ” the
disclosure “is complete and correct as of the time it
is made.” Fed.R.Civ.P. 26(g)(1)(A).
If a certification violates this rule without substantial
justification, the court, on motion or on its own, must
impose an appropriate sanction on the signer, the party on
whose behalf the signer was acting, or both. The sanction may
include an order to pay the reasonable expenses, including
attorney's fees, caused by the violation.
Fed. R. Civ. P. 26(g)(3).
also provides an enforcement mechanism for violations of Rule
26(a) or (e):
If a party fails to provide information . . . as required by
Rule 26(a) or (e), the party is not allowed to use that
information . . . to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an
opportunity to be heard:
(A) may order payment of the reasonable expenses, including
attorney's fees caused by the failure;
. . .
(C) may impose other appropriate sanctions, including any of
the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1) (emphasis added).
there is a Rule 37 violation, the burden is on the
potentially sanctioned party to prove harmlessness or
justification. Roberts ex rel. Johnson v. Galen of Va.,
Inc., 325 F.3d 776, 782 (6th Cir. 2003). A district
court enjoys wide discretion to fashion a remedy or sanction
appropriate for the circumstances. Wegener v.
Johnson, 527 F.3d 687, 692 (8th Cir. 2008). In so doing,
the court considers the reason for the noncompliance, the
surprise and prejudice to the opposing party, the extent to
which allowing the information or testimony would disrupt the
order and efficiency of the trial, and the importance of the
information or testimony. Id. The court's
discretion, however, narrows as the effective severity of the
sanction increases. Id. Exclusion of evidence is a
harsh penalty that should be used sparingly. Id.
February 6, 2014, Plaintiffs served their initial discovery
on Cypress, including their First Request for Production of
Documents, Electronically Stored Information, and Tangible
Things (“RFP”), as well as their First
Interrogatories (“Interrogatories”). Relevant to
the present dispute, Plaintiffs' RFP sought the following
documents from January 1, 2008, to the present:
2. All written agreements for subscription newspaper service
. . . .
3. All documents which relate in any manner to any written
agreement for subscription newspaper service . . . .
4. All Subscription Invoice and Subscription Renewal
documents, or any other similar form document . . . .
. . .
9. All documents, written correspondence, e-mail
correspondence, or any other form of communication sent to
you by, or by you . . . including . . . records of telephone
calls, emails, or internet communications. . . .
. . .
16. All documents which you contend provided any type of
notice . . . regarding your billing practices, including . .
. any notice which has appeared on . . . Subscription Invoice
forms or any similar document, Subscription Renewal forms,
and/or in any of Defendant's newspapers . . . . . . .
18. All documents which you contend provided any type of
notice . . . regarding any amount charged to your customers
for “Special Editions, ” “Premium Editions,
” or similar editions of your newspapers.
Interrogatories asked Cypress to identify all documents in
the same time frame which:
9. . . . reflect the “Begin Date” and/or the end
date (sometimes referred to as a “Pays To” date)
of your . . . initial Subscription Period and any subsequent
Renewal Subscription Period . . .
. . .
21. . . . reflect or refer to the assessment of a fee or
charge . . . for Subscription Services . . . .
. . .
23. . . . reflect or otherwise relate to your reimbursement,
adjustment or credit of a fee or charge . . . related to
Defendant's Subscription Billing Practice.
August 2014, after multiple discovery disputes which required
the Court's intervention to resolve, Cypress produced
many documents responsive to Plaintiffs' requests. Among
these were sixty-five subscription invoices sent to
Plaintiffs, four publisher's notices, and four screen
snapshots from The Kansas City Star's
(“The Star”) accounting database showing
transactions and events related to the Plaintiffs'
accounts. On September 5, 2014, discovery into class
certification issues closed.
13, 2015, the Court denied Plaintiffs' motion for class
certification, finding Plaintiffs had not demonstrated that
there were questions of law or fact common to the class, or
that common questions of law or fact predominated over
questions affecting individual members. Order (Doc. 115) at
October 30, 2015, merits discovery closed.
weeks later, on November 24, 2015, Cypress produced
seventy-five documents to Plaintiff, Bates labelled
Cypress011991 to 012065, which had not previously been
disclosed. The ...