United States District Court, D. Maryland
Albert S. Smyth Co., Inc., et al.
Mark A. Motes, et al.,
March 19, 2019, this matter was referred to me for discovery
disputes and related scheduling matters. ECF 99. Presently
pending is Defendant/Counter-Plaintiff Mark Motes's
(“Motes”) Motion for Sanctions for Failure to
Comply with the April 3, 2019 Discovery Order. ECF 104.
Plaintiffs/Counter-Defendants Smyth Ellicott City, LLC and
Smyth Annapolis, LLC (“Smyth”) opposed the
Motion. ECF 106. Motes did not file a Reply. No. hearing is
deemed necessary. See Local Rule 105.6 (D. Md.
2018). For the reasons stated below, Motes's Motion is
March 18, 2019, Motes filed a Motion to Compel Smyth's
Discovery Responses. ECF 98. On April 3, 2019, this Court
held a teleconference to discuss the status of discovery. ECF
100. Following the teleconference, the Court memorialized its
rulings and the parties' agreements in a Letter Order.
ECF 102. The April 3, 2019 Letter Order granted in part and
denied in part Motes's Motion, and directed Smyth to
provide certain discovery responses on or before April 30,
the Court ordered Smyth to: provide a certification, pursuant
to Federal Rule of Civil Procedure 26(g), as to the
non-existence of information and files responsive to
Interrogatory Numbers 4 and 16; provide a narrative response
to Interrogatory Numbers 7, 11, 12, 13, 14, 15, 17, and 18;
identify, by Bates Number, the 2009 meeting minutes
responsive to Interrogatory Numbers 7, 11, 12, 13, 14, and
17; and to “de-de-duplicate” the documents
produced, responsive to Requests for Production Numbers 3,
11, 22, and 23, in order to produce all cover emails for
various attachments. ECF 102 at 1-2.
8, 2019, Motes filed the pending Motion for Sanctions,
contending that Smyth had produced certain cover emails on
May 1, 2019, but had otherwise failed to comply with the
Court's April 3, 2019 Letter Order. ECF 104 at 2. In its
Response, Smyth conceded that it failed to provide the
discovery responses by April 30, 2019, but maintained that
“counsel had mistakenly failed to do so, ” and
has since provided Motes with the required discovery. ECF 106
¶¶ 2, 6, 14; ECF 106-1, ECF 106-2. Motes seeks
sanctions and attorneys' fees for Smyth's failure to
seeks a sanction of contempt against Smyth, or a
“lesser sanction of precluding Smyth from supporting
its defense to Motes's breach of contract claims,
including but not limited to introducing evidence regarding
any alleged oral modification at trial and from supporting
its defense to Mr. Motes' accounting claims, including
but not limited to introducing evidence regarding its alleged
provision of a complete and timely accounting for taxable
year 2016.” ECF 104 at 6. In addition, Motes seeks the
reasonable expenses, including attorneys' fees, incurred
by Motes in filing his Motion to Compel and his Motion for
Sanctions. Id. at 7.
Motion for Sanctions
Federal Rule of Civil Procedure 37(d)(1)(A)(ii), the Court
may grant a motion for sanctions if a party fails to serve
answers, objections, or a written response to properly served
discovery requests. The motion must certify that “the
movant has in good faith conferred or attempted to confer
with the party failing to act in an effort to obtain the
answer or response without court action.” Fed R. Civ.
P. 37(d)(1)(B). When granting the motion, the Court has broad
discretion to select any of the sanctions listed in Federal
Rule 37(b)(2)(A), including “prohibiting the
disobedient party from supporting or opposing designated
claims or defenses, ” or “treating as contempt of
court the failure to obey any order.” Instead of, or in
addition to, these sanctions, the Court “must require
the party failing to act, the attorney advising that party,
or both to pay reasonable expenses, including attorneys'
fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(d)(3).
determining which of the Rule 37 sanctions is appropriate,
courts in the Fourth Circuit consider four factors:
“(1) whether the non-complying party acted in bad
faith, (2) the amount of prejudice that noncompliance caused
the adversary, (3) the need for deterrence of the particular
sort of non-compliance, and (4) whether less drastic
sanctions would have been effective.” S. States
Rack and Fixture, Inc. v. Sherwin-Williams, Co., 318
F.3d 592, 597 (4th Cir. 2003) (internal quotation marks
omitted). The presence or absence of any one of these factors
is not dispositive. See Victor Stanley, Inc. v. Creative
Pipe, Inc., 269 F.R.D. 497, 533 (D. Md. 2010).
not find the sanctions sought by Motes to be appropriate, in
part because it appears that Motes failed to confer in good
faith with Smyth to obtain the discovery responses without
court action, and because Smyth has offered a reasonable
explanation for its untimely service, and has since provided
the ordered discovery. See ECF 106, 106-1, 106-2.
After application of the factors, I find that Smyth's
untimely service does not reflect bad faith on Smyth's
part, nor has Motes been prejudiced by the delay. As of May
9, 2019, Smyth represented that it had fully complied with
the April 3, 2019 Letter Order, and provided copies of its
supplemental responses reflecting the same. ECF 106 ¶
14; ECF 106-1; ECF 106-2. Importantly, Smyth explained its
inadvertently delayed service as a mistake by counsel when,
on April 30, 2019, he intended to bundle all of the discovery
responses into a single folder for Dropbox, but mistakenly
only shared the de-de-duplicated emails. ECF 106 ¶ 6.
When Smyth's counsel followed up on May 1, 2019, to
ensure that Motes had received the discovery responses, he
did not receive a reply that day. Id. ¶¶
7, 8. Rather, on May 2, 2019, Motes's counsel asked
Smyth's counsel to share the Dropbox folder with her ESI
vendor, which Smyth's counsel did immediately.
Id. Smyth was unaware that the Dropbox folder did
not contain all of the required discovery responses until
Motes filed the presently pending motion on May 8, 2019.
Id. ¶ 9. Motes did not file a Reply to either
refute or confirm Smyth's explanation. Accordingly, I do
not find that Motes suffered any prejudice from this one-week
delay, and the sanctions sought are not appropriate.
asks that this Court award him the reasonable expenses and
attorneys' fees he incurred in filing his Motion to
Compel, ECF 98, and his Motion for Sanctions, ECF 104. ECF
104 at 7. With respect to attorneys' fees, ...