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October 16, 1995


The opinion of the court was delivered by: MCAVOY


 Plaintiffs Margaret Burnett and Motier Haskins originally commenced this action by filing a complaint on July 19, 1994. Plaintiffs submitted an amended complaint on January 30, 1995, wherein they seek to recover compensatory and punitive damages, along with attorneys' fees and costs, for alleged violations by defendants Telda Venturi and Yvo Venturi of 42 U.S.C. §§ 1982 and 1988, the Fair Housing Act as amended (42 U.S.C. §§ 3601, et seq.), the Thirteenth Amendment, and New York Law. The injuries claimed arise from alleged discrimination on the basis of both race and family status.

 Defendants moved to dismiss plaintiffs' claims or, alternatively, for the preclusion of certain evidence pursuant to Fed. R. Civ. P. 37 because of plaintiffs' failure to produce certain requested audio recordings. Defendants also moved for monetary sanctions in the form of attorneys' fees for the alleged discovery violations. Plaintiffs opposed the motions and cross-moved for leave to file a second amended complaint and for summary judgment on their claims of discrimination based on family status. The following constitutes the Court's findings of fact and conclusions of law with respect to the issues raised.


 Plaintiffs Burnett and Haskins are an African-American married couple whose household includes Ms. Burnett's three minor children from a previous marriage. Defendants Telda and Yvo Venturi are the owners of a three-bedroom, single-family house located in Latham, New York, that they rent to tenants for residential purposes. In June, 1994, defendants advertised the Latham house for rent in the Albany Times-Union. Plaintiffs responded to the advertisement and, after telephone conversations with defendant Telda Venturi, scheduled an appointment to see the property on June 21, 1994.

 Plaintiffs were in fact shown the house by defendant Telda Venturi on June 21, 1994, and they indicated to Ms. Venturi their interest in renting the house. Ms. Venturi provided plaintiffs with an application form to complete. Plaintiffs indicated on the form, among other things, that they wished to have the three children -- all boys, ages 9, 11, and 12 -- reside with them in the house. The completed application was returned to Ms. Venturi that evening, and she informed plaintiffs that she would let them know whether they would be accepted as tenants. The next day, however, Ms. Venturi notified plaintiffs that they could not rent the house because "[their] family was too big for the house." (Haskins Dep. at 75. See also T. Venturi Dep. at 30.)

 On June 25, 1994, plaintiffs sought to clarify their status regarding rental of the Latham house, so plaintiff Haskins telephoned Ms. Venturi once more. In response to Mr. Haskins' inquiry as to whether the house was still available, Ms. Venturi answered in the affirmative. Mr. Haskins then asked, in essence, why his family was not being considered. Ms. Venturi answered again that "you still have a big family and I still have a small house." (T. Venturi Dep. at 33.) Plaintiff Haskins apparently audiotaped this June 25, 1994, conversation with defendant Telda Venturi.

 Soon after their last direct contact with defendants, plaintiffs arranged for a white, female friend to visit the Latham house as a Fair Housing "tester" to see if defendants would respond differently to someone who basically represented the polar opposite of plaintiffs. The "tester" also recorded her interaction with Ms. Venturi, yet she did so on the same microcassette that Mr. Haskins had used for the first recording. Plaintiffs revealed to defendants in the normal course of discovery that they had recorded the two conversations. Plaintiffs also revealed that they erased the recording of the conversation between the tester and Ms. Venturi soon after making it, for the stated reason that it was a very poor recording. Defendants eventually requested access to the tape itself through discovery. Plaintiffs alleged for over six months that they or their counsel had misplaced the tape and consequently could not provide it to defendants. However, plaintiffs recently "found" the tape and have offered to make it available for inspection.

 Defendants eventually rented the Latham house to a single, white female with no children. Plaintiffs believe that they were denied the opportunity to rent the house because they are black and because of their family status. Defendants consistently have denied engaging in racial discrimination, but this is a factual question not before the Court for purposes of these motions. Defendants consistently have admitted, however, that plaintiffs were denied the chance to rent the Latham house because defendants believed the family was too large for a relatively small house. As a result, plaintiffs seek summary judgment on their claims of discrimination based on family status.

 In regard to the missing audiotape, defendants argue that plaintiffs' failure to produce it in a timely fashion should lead to the dismissal of the Amended Complaint or, alternatively, to the preclusion of any testimony by plaintiffs regarding either of the recorded conversations with Ms. Venturi. Defendants also seek attorneys' fees for the time expended pursuing their discovery requests pending motions. Plaintiffs agree that the tape was discoverable, and previously have offered to stipulate to the imposition of some sanction based on their inability to produce the item. Now that they have located the tape, however, plaintiffs have requested that defendants withdraw their motion for sanctions.

 Finally, plaintiffs have moved for leave to file a second amended complaint based on their recent "discovery" of another New York statute *fn1" that they believe defendants have violated. Plaintiffs offer, however, no explanation for their failure to include this new cause of action in either of their previous pleadings other than the fact that they simply had not noticed it before. In an ironic twist, despite this two-month oversight, plaintiffs also argue that the Court should disregard defendants Local Rule 7.1(f) statement because it was submitted three weeks after the deadline. Not surprisingly, defendants argue that plaintiffs' requests should be denied.



 Fed. R. Civ. P. 37(d) allows the impositions of sanctions against a party for serious disregard of the obligations imposed by the federal discovery rules even though the party has not violated any court order. Failure to appear at a deposition or failure to serve answers or objections to interrogatories are examples of the kinds of violations cited. Fed. R. Civ. P. 37(d). For purposes of this case, Rule 37(d) also allows the court in which an action is pending to impose a variety of sanctions on a party that has failed to sufficiently respond to a request for inspection after proper service of the request.

 Disciplinary sanctions under Rule 37 are intended to serve three functions. First, they ensure that a party will not benefit from its own failure to comply. Second, they are specific deterrents and seek to obtain compliance with either court orders or the ordinary standards of care appropriate for parties and their attorneys. Third, they are intended to serve as a general deterrent in the case at hand and in other litigation, provided that the party against whom they are imposed was in some sense at fault. Update Art, Inc. v. Modiin Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988). The Second Circuit consistently has expressed its belief "in the importance of sanctions as a necessary means of dealing with a recusant party." Id. Although preclusion of evidence and dismissal of an action are harsh remedies and should be imposed only in rare situations, they sometimes are necessary to achieve the goals of Fed. R. Civ. P. 37 as a credible deterrent "rather than a 'paper tiger.'" Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1064 (2d Cir. 1979).

 Here, plaintiffs allege that their failure to produce in a timely manner the audiotape requested by defendants was not a willful violation of the discovery rules. The Court will not concern itself with that factual determination, however, because Fed. R. Civ. P. 37(d) applies even in cases not rising to the level of willfullness. See 8A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2291 (1994). Plaintiffs in this case, or their attorneys, clearly were at least negligent or reckless both in erasing one side of the tape and in subsequently misplacing the tape. The presence or absence of willfullness does remain relevant in the choice of sanction, but the Court has discretion to impose some penalty regardless of the reason for the discovery violation. See SEC v. Research Automation Corp., 521 F.2d 585, 588-89 (2d Cir. 1975).

 Plaintiffs do not dispute the Court's authority to impose sanctions for discovery violations and previously have offered to stipulate to the imposition of some penalty. Not surprisingly, plaintiffs go to great lengths to persuade the Court to limit the extent of their punishment. They argue, inter alia, that their recent discovery of the tape's location "is relevant to the pending sanctions motion." (Letter from Pl.'s Att. Mishler to the Court of 9/26/95 at 1.) Plaintiffs apparently believe that all is well now that the long-sought-after tape is available for inspection.

 Again, defendants seek dismissal of the Amended Complaint or, alternatively, preclusion of testimony by plaintiffs regarding either recorded conversation. Plaintiffs, on the other hand, would at most have the Court exclude the testimony of the white "tester" from the second conversation. Plaintiffs initially argue that the proposed sanction of dismissal is "preposterous" in light of the circumstances of this case. (Pls' Mem. Opp. Sanc. at 21.) While refraining from such hyperbole, the Court is inclined to agree with plaintiffs that dismissal of the Complaint is not warranted here. Use of dismissal as a sanction for failure to provide discovery is limited to cases involving willfullness or bad faith on the part of a disobedient party. Altschuler v. Samsonite Corp., 109 F.R.D. 353, 356 ...

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