United States District Court, D. Maryland, Southern Division
EARL E. SHARPE, JR., Plaintiff,
PRINCE GEORGE'S COUNTY GOVERNMENT, Defendant.
Charles B. Day United States Magistrate Judge
the Court is Plaintiff's Motion for Immediate Order for
Contempt and Sanctions Against John M. Hall, Esq.
(“Plaintiff's Motion”)(ECF No. 42). The Court
has reviewed Plaintiff's Motion and related filings. No.
hearing is deemed necessary. Local Rule 105.6 (D. Md.). For
the reasons set forth below, the Court GRANTS Plaintiff's
counsel served a subpoena upon Plaintiff's former
worker's compensation counsel, John Hall, Esq., seeking
the “complete files maintained” by Mr. Hall or
his firm (the “Hall Firm”). The Hall firm
communicated with Plaintiff's counsel indicating the need
to conduct a search of files that were “closed.”
Thereafter, documents obtained from the Maryland Worker's
Compensation website were produced electronically on February
level, Plaintiff's subpoena sought copies of
counsel's entire worker's compensation file. However,
Plaintiff was and remains extremely interested in the scope
of communications between the Hall Firm and the Prince
George's County Government and/or its agents (“the
County”). Plaintiff was also seeking at least one item
in particular. Plaintiff wanted the Hall Firm's copy of a
January 13, 2014 form letter on firm letterhead which was
reverse- addressed to a Hall firm paralegal named LaTrell
Yeager (the “Yeager Letter”). Plaintiff obtained
a copy of the Yeager Letter from another source.
receiving the initial production, Plaintiff's counsel
quickly discerned that the Yeager Letter and other believed
to exist correspondence with the County were not included in
the production and demanded a more fulsome production within
two days. No. additional documents were provided.
Plaintiff's counsel eventually indicated that “none
of the correspondence or documents pertaining to
communications with Department ranked officers or other
Department personnel sought in the subpoena have been
produced.” See Plaintiff's Request for
Pre-Motion Conference, p. 2. ECF No. 35.
The Production Required.
a request for documents is made upon a party or a non-party,
the standard governing production is the same. A responding
entity is in general required to produce responsive documents
in its “custody, possession or control, ” bounded
by considerations of proportionality. Fed.R.Civ.P. 26(b),
34(a)(1), and 45(a)(1)(A)(iii). Given the nature of business
communications, Plaintiff is reasonable in expecting a robust
collection of documents and correspondence to exist between
the Hall Firm and the County. Moreover, since Plaintiff is
already in possession of the critical Yeager Letter, he is
seeking its production from the files of the Hall Firm as
well as more context regarding its creation and delivery.
the Yeager Letter has yet to be produced by Mr. Hall or his
firm. While this may fly in the face of legitimate
expectations, these expectations should be tempered by two
considerations. First, Counsel's files regarding
Plaintiff's worker's compensation claims have been
“closed” for seven years. Verified Opp'n to
Pl.'s Mot. For Attorney's Fees, at 2. ECF No. 63. The
Hall Firm is under no obligation to retain files for such a
duration. Id. Second, there is no indication that
the Hall firm has possessed a copy of the Yeager Letter or
other requested correspondence since the time of the service
of the subpoena or at any time since. Neither the initial
search in February 2019, nor the deeper dive at the
firm's offsite storage facility, has uncovered a copy of
the Yeager Letter or “any emails or
correspondence.” See Mr. Hall's Response
to Show Cause Order, p. 2. ECF No. 43. Simply put, there is
no indication that the Yeager Letter or other forms of
communication has been in the “custody, possession or
control” of Mr. Hall since February 2019. Accordingly,
the rear mirror view of this discovery dispute is not helpful
to Plaintiff's cause. Plaintiff is not entitled to obtain
from Mr. Hall what he does not possess.
The Question of Contempt.
next question is whether Plaintiff suffered prejudice by
going through unreasonable efforts to obtain a complete
response to the subpoena. The Court concludes he did.
receipt of the subpoena, Mr. Hall was obligated to conduct a
reasonable search for responsive documents. While there is
some question about how quickly efforts were made regarding
the initial search, it is clear that no search of the offsite
storage facility was conducted until after the Court issued
its Show Cause Order of March 20, 2019. Failure to comply
with the subpoena required Plaintiff to pursue the assistance
of the Court, for what turned out to be “no good
reason.” If Mr. Hall or his firm had satisfied the
initial obligation and advised of the completeness of its
search to include the offsite storage facility, Plaintiff may
have chosen to be skeptical but could not suggest any
meaningful prejudice. Here, Plaintiff had to pay an
unnecessary price in time and effort.
February 20, 2019, Plaintiff's counsel began the formal
steps to enforce the subpoena. He wrote to the Court trying
to schedule to pre-motion telephone conference and copied Mr.
Hall on the request. ECF No. 35. The Court then issued an
Order scheduling the telephone conference. The conference was
held on March 4, 2019 and Mr. Hall did not dial in. Counsel
for both Plaintiff and Defendant indicated that they provided
notice to Mr. Hall of the scheduled telephone conference.
Chambers staff had done the same by telephone on March 1,
2019. Following the telephone conference, Chambers staff
reached out again to Mr. Hall and was advised that the
message regarding the conference call was given to Mr. Hall