UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 22, 2009
KEN WIWA, ET AL., PLAINTIFFS,
ROYAL DUTCH PETROLEUM CO., ET AL., DEFENDANTS.
KEN WIWA, ET AL., PLAINTIFFS,
BRIAN ANDERSON, DEFENDANT.
ESTHER KIOBEL, ET AL., PLAINTIFFS,
ROYAL DUTCH PETROLEUM CO., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
OPINION & ORDER
There are a number of outstanding discovery disputes pending before the Court in Wiwa v. Royal Dutch Shell Petroleum Co., 96 Civ. 8386, and Wiwa v. Anderson, 01 Civ. 1909 (collectively "Wiwa"); as well as in Kiobel v. Royal Dutch Shell Petroleum Co., 02 Civ. 7618 ("Kiobel"). This order addresses one of these discovery disputes: a motion for a discovery sanction of dismissal, 96 Civ. 8386 D.E. ("96-D.E.") 260, by defendants in the three above-captioned actions ("Defendants").
Defendants argue that the Court should dismiss the Wiwa and Kiobel cases as a discovery sanction under Federal Rule of Civil Procedure 37(b)(2) because plaintiffs in these cases ("Wiwa Plaintiffs" and "Kiobel Plaintiffs"; collectively "Plaintiffs") continued to produce discovery documents after the date by which Magistrate Judge Pitman had ordered them to complete production (the Court's "completion deadline"), and after filing affidavits with Magistrate Judge Pitman several months after the completion deadline stating that their production was complete. (Mot. Disc. Sanction Dismissal 4, 6-7, 14-16.)
For the reasons below, Defendants' motion for a discovery sanction of dismissal, 96-D.E. 260, is DENIED, but Defendants are granted the opportunity to redepose certain witnesses on the eve of, or during, trial. In addition, the Court orders further briefing regarding whether Plaintiffs must pay reasonable expenses for their tardy production.*fn1
I. Summary of Arguments
A. Kiobel Plaintiffs
Defendants contend that Kiobel Plaintiffs' compliance with the Court's order to complete discovery has been so insufficient as to warrant a discovery sanction of dismissal. In particular, Defendants argue that Kiobel Plaintiffs' affidavits and deposition testimony indicate that they have not produced documents that Defendants contend are in their possession, custody, or control.*fn2 (Mot. Disc. Sanction Dismissal 7-9, 13.) Defendants also argue that dismissal is warranted because Kiobel Plaintiffs have produced responsive documents on the day of, or following, Defendants' depositions of plaintiffs and witnesses, despite the fact that the depositions occurred months after the Court's completion deadline.*fn3 (Id. at 9-10; Kiobel Reply 4-5, 8- 9.) Defendants contend that Kiobel Plaintiffs' tardy production has prejudiced Defendants because they have been unable to use the late-produced documents in their depositions. (Kiobel Reply, 9-10.)
Kiobel Plaintiffs argue that they have produced documents responsive to Defendants' discovery requests and the Court's discovery order sufficiently and with good faith. In particular, they argue that documents Defendants contend are outstanding are in one of three categories: (1) not in Kiobel Plaintiffs' possession, custody, or control; (2) not responsive; or (3) do not exist. (Kiobel Mem. L. Supp. Kiobel Pls.' Opp'n Defs.' Mot. Disc. Sanction of Dismissal ("Kiobel Opp'n") 2-3.) They also contend that Kiobel Plaintiffs' counsel have adequately supervised their clients' document production, including by traveling to Nigeria and across the United States to recover documents; by acquiring allegedly withheld categories of documents from public sources, Kiobel Plaintiffs, and third parties; and by searching Kiobel Plaintiffs' homes. (Id. at 3-5.) They further argue that their production of documents during depositions and after the Court's completion deadline was not the result of bad faith or negligence, but was due to misunderstandings by "unsophisticated plaintiffs," which occurred despite counsel's and Kiobel Plaintiffs' diligent efforts. (Id. at 4-5)
B. Wiwa Plaintiffs
Defendants argue that Wiwa Plaintiffs' compliance with the Court's order to complete discovery has also been so insufficient as to warrant a discovery sanction of dismissal. In particular, Defendants argue that Wiwa Plaintiffs' affidavits indicate that several Wiwa Plaintiffs did not begin searching for documents in Nigeria until just before their affidavits were due, and several months after the Court had ordered Wiwa Plaintiffs to complete production. (Mot. Disc. Sanction Dismissal 16-17.) Furthermore, Defendants argue that dismissal is warranted because Wiwa Plaintiffs continued to produce documents responsive to Defendants' initial discovery requests after swearing in their affidavits that they had already produced all responsive documents. (Id. at 15; Wiwa Reply Mem. L. Supp. Defs.' Mot.
Disc. Sanction Dismissal ("Wiwa Reply") 3-4.) In addition, Defendants contend that Wiwa Plaintiffs' affidavits and deposition testimony indicate that they may still have unproduced documents in their possession.*fn4 (Id. at 17, 19-21; Wiwa Reply 7-8.) Defendants also argue that Wiwa counsel have been insufficiently involved in Wiwa Plaintiffs' document searches. (Id. at 18-19; Wiwa Reply 5-6.) Lastly, Defendants contend that Wiwa Plaintiffs' piecemeal and belated production has prejudiced Defendants because they were unable to use many of the tardy documents in their depositions. (Wiwa Reply, 8-10.)
Wiwa Plaintiffs contend that they have made consistent, good faith, and satisfactory efforts to fulfill Defendants' discovery requests and the Court's discovery order. In particular, they argue that all the documents Defendants allege Wiwa Plaintiffs have yet to produce are in one of three categories: (1) not in Wiwa Plaintiffs' possession, custody, or control; (2) not responsive; (3) do not exist; or (4) have already been produced. (Wiwa Mem. L. Opp'n 1-6.) They further detail the sustained and substantial (if not always timely) efforts they and their counsel have made to produce all responsive documents, most of it timely.*fn5 (Id. 2-4; 15-16.) Finally, they note that Magistrate Judge Pitman, in ordering Plaintiffs to submit affidavits detailing their searches and production, anticipated that doing so would help them ensure that they had not overlooked any documents in their prior searches. (Id. at 7-8.) Thus, they argue, their searches in Nigeria in March and April of 2004 complied with, rather than violated, the Court-supervised discovery process.*fn6
C. Discovery Sanction of Dismissal
1. Legal Standard
Rule 37(b) empowers a court to dismiss an action in whole or in part "[i]f a party . . . fails to obey an order to provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A).
A discovery sanction of dismissal is an "extreme and harsh remedy" that is "appropriately imposed only in cases of willfulness, bad faith, or reasonably serious fault." Commercial Cleaning Servs., L.L.C. v. Colin Service Systems, Inc., 271 F.3d 374, 386 (2d Cir. 2001); see also Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002). Only an "egregious, abusive disregard of a court order . . . would justify" such a sanction. Commercial Cleaning Servs., 271 F. 3d at 387.
Circumstances where courts have found a party's noncompliance with a court's order sufficiently willful and egregious to merit a discovery sanction of dismissal are extreme. They include plaintiffs who refused to respond to interrogatories for three years, despite multiple court orders and the imposition of monetary sanctions, see Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062 (2d Cir. 1979); plaintiffs who failed to respond to interrogatories for years and despite a court order, and then offered perjurious testimony in an attempt to cover up their noncompliance, see Indep. Investor Protective League v. Touche Ross & Co., 607 F.2d 530, 534 (2d Cir. 1978); and plaintiffs who failed to comply with five court orders, see Nieves, 208 F.R.D. at 536.*fn7
Plaintiffs' tardy production simply does not rise to the level of egregiousness, willfulness, bad faith, or serious fault necessary to justify the extreme remedy Defendants seek. Plaintiffs and their counsel searched for and produced documents (1) in anticipation of the Court's completion deadline, and (2) again when the process of providing court-ordered affidavits had its desired effect of leading to as yet undiscovered documents. Where depositions have indicated possible overlooked caches of documents, Plaintiffs have generally searched for and produced them.*fn8 Although Plaintiffs have not done a perfect job of complying with the Court's discovery order, this is not a situation where, as a result of Plaintiffs' noncompliance "the progress of the litigation has been stonewalled." Nieves, 208 F.R.D. at 536. A discovery sanction of dismissal is therefore unwarranted.
Ultimately, Defendants' grievances boil down to three issues: (1) the prejudice they have suffered because Plaintiffs have produced relevant documents too late for Defendants to have a meaningful opportunity to use them in depositions, (2) whether employment rejection letters addressed to the deceased father of Wiwa Plaintiff David Kiobel are responsive; and (3) a disagreement with Plaintiffs about Plaintiffs' obligation to produce (a) medical records held by third-party medical providers, (b) records of organizations to which some Plaintiffs belonged or in which some Plaintiffs held leadership positions, and (c) records in the custody of Nigerian lawyers who represented Plaintiffs or their deceased relatives.
Defendants' concern about the prejudice caused by Plaintiffs' late production of documents is valid. Plaintiffs have raised a similar concern regarding documents Defendants produced subsequent to several depositions Plaintiffs took of Defendants' witnesses. See Order of the Court 8, October 24, 2008, 96-D.E. 253. In response, the Court granted Plaintiffs an opportunity to redepose these witnesses, on the eve of or during trial, regarding any documents Defendants produced after Plaintiffs' prior depositions of these witnesses. Id. Although the Court does not find a discovery sanction of dismissal warranted here, Defendants should be provided the same opportunity as Plaintiffs.
Accordingly, Defendants may redepose any witnesses for whom Plaintiffs produced relevant documents subsequent to Defendants' last deposition of the witness. These redepositions will be confined to those documents produced too late for Defendants to have had a meaningful opportunity to use them in their last depositions of these witnesses. Any such redeposition shall occur on the eve of or during trial.
As for Defendants' dispute with Plaintiffs regarding (1) whether letters in Wiwa Plaintiff David Kiobel's possession are responsive, and (2) whether certain organizational, legal, and medical documents are within Plaintiffs' possession, custody, or control, a discovery sanction of dismissal is not the appropriate mechanism to resolve them.*fn9
Defendants' motion for a discovery sanction of dismissal, 96 D.E. 260, is DENIED, but Defendants are granted the opportunity to redepose certain witnesses on the eve of, or during, trial.