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Sharpe v. Prince George's County Government

United States District Court, D. Maryland, Southern Division

August 29, 2019

EARL E. SHARPE, JR., Plaintiff,


          Charles B. Day United States Magistrate Judge

         Before 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 Motion.

         I. Factual Background

         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 13, 2019.

         On one 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.

         Upon 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.

         II. Analysis

         a. The Production Required.

         Whether 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.

         Surprisingly, 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.

         b. The Question of Contempt.

         The 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.

         Upon 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.

         On 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 on ...

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